Generally, every client has a unique set of facts and circumstances. Although ultimate goals and expectations can be somewhat similar, because each person is different, my advice is never the same…until recently. Over the course of the past two weeks, I have addressed the same issue twice: a vague divorce settlement agreement.
When people divorce they can go one of two routes: Contested or Uncontested. Contested, means that the parties can’t agree and they need a Judge to determine the rights and responsibilities of the parties. When a couple, despite their inherent conflicts, can agree on the division of property, both real and personal, other assets and liabilities, and if applicable, they even agree on the custody of their children then the uncontested path is chosen. This is of course is a preferable way to settle the divorce, because each party has a say and legal fees are kept to minimum. A “Settlement Agreement” is crafted and signed by each party. That agreement is then incorporated into the ultimate decree issued by the Court.
However, if the agreement is vague or incomplete; problems arise and this could force the parties back to court. That is what has happened to two of my most recent clients. In both cases, the original agreement looked perfect, covering what seemed like everything…property division, waivers of certain claims, and custody and support of their children. The problem? Both agreements failed to set forth provisions which I call the – “what if” provisions.
For example, if the parties are dividing their home and one party is to refinance or sell the home, what if the refinance doesn’t occur or the home doesn’t sell? Specific provisions must set forth a remedy in the event one party is completely incapable of adhering to the terms and conditions of the agreement. I call it avoiding the “do-loop”. A do-loop is a term used in a computer program called Basic. A programmer uses a do-loop when he wants something to happen, an infinite amount of times. Thus if there is a do-loop embedded in an agreement, there is no end or cut off. For example, if your ex is to refinance the home, and she can’t, there needs to be a provision to propel the parties forward into another option, like selling the home or placing it in a public auction. Without this provision, the parties are stuck in a do-loop without an exit plan.
Both clients stated to me, that they asked their previous lawyer what would happen if their soon-to-be former spouse was unable to refinance or sell. Each lawyer gave them an answer which seemed to satisfy the client. But now they are with me, asking the same questions. And, because the agreement didn’t specifically address that “what if”, we are heading back to Court.
Long story short, if you have requested your lawyer draw up or review a Settlement Agreement and before you sign – you ask what happens if…then it’s vague and needs revision. Despite counsel’s attempts to create a thorough and clear agreement, some of the provisions didn’t go far enough. Certainly, lawyers do their best to account for all situations, as it’s just not possible see into the future and predict every single circumstance that could go wrong. But, if the client must ask “what if” then I believe lawyers need to address that particular situation in the agreement.
Agreements must be clear and in no way, ambiguous or vague. Sadly, each client told me that what they thought should happen, but, in reality, what will happen is up to a Court; unless, both sides can agree…again.
