Many clients ask why divorce agreements are so long and whether the exact wording really matters that much. The length is due to the fact that there are so many different issues that need to be covered. Issues such as Maintenance, Child Support, Custody & Parenting Time, and Equitable Distribution are just some of the areas that need to be covered in an agreement. I have seen some agreements that left out major issues, such as who is paying for college, which leaves both parties, not to mention the children, in a precarious position.
Each section should lay out the agreement between the parties as clearly as possible so that both understand what is expected of them going forward. One word can make a huge difference!
As an example, let’s say two parents agree that they will “confer” before making a decision on their children’s extracurricular activities. This is different from saying that they must “agree” in that conferring only means discuss, not agree. So if they don’t agree on the activities, where are they? Normally when I draft an agreement where the parties agree to confer, I like to insert a person or type of person they can go to for a tie breaker, such as the child’s guidance school counselor or their Pastor, Rabbi or other faith-based leader. This way they do not need to go back to court to get a decision. Another option is to return to mediation or mediate in the first instance if the parties have reached an impasse.
Likewise, the words’ “shall” and “may” are not interchangeable. As an example, should the clients agree to consult a bankruptcy attorney, the words “shall consult” make a big difference. If one party does not consult and the other files bankruptcy after consulting a bankruptcy attorney, the repercussions can be tremendous.
Even words as seemingly clear as “biweekly” can be problematic. Biweekly can mean twice a week, or every two weeks. Which one did the parties agree to? A better way to draft the agreement if they meant one parent gets to have the children twice a week for dinner during the workweek is to spell it out just like that, leaving no confusion.
Believe it or not, whether the agreement is mediated or the result of intense negotiations and court time, your goal should be to have your attorney or mediator draft a rulebook by which you and your former spouse can live in the future with as few gray areas as possible. This should keep “post judgment litigation” to a minimum as everyone understands the plain meaning of the agreement.
This actually takes some writing ability and much discussion. Take the time to review and understand your agreement, and ask your lawyer to explain clauses you don’t understand. Only then can you sign with confidence!
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516