By Jennifer M. Paine
Chances are at some point in your case you will be responsible for reviewing and drafting all or a portion of a divorce settlement, order, or judgment.
Certainly, when your case settles you and your divorce attorney will share in drafting the settlement documents – some of which your judge will sign – with your ex and her attorney.
In many jurisdictions, judges also require divorce lawyers and parties to prepare judgments and orders based on the judge’s rulings at a hearing or trial.
That’s where the language traps in a divorce settlement come into play.
For parties who are unrepresented, this task poses a serious problem – you are responsible for drafting legal documents with very little, if any, legal knowledge. And although some jurisdictions offer free or low cost assistance via help desks, online tutorials, and law students, these pale by comparison to a seasoned attorney who has been drafting documents for years.
This is because we attorneys are crafty in our language. Orders and judgments and contracts that bind lives – yours, you ex’s and your family’s – and are meant to last a lifetime.
For this reason, we are very particular about the language we use and what that language means. Although these documents should be drafted to be readable, the language more often than not incorporates meanings that, unless you consulted an attorney, you will probably not realize.
That is, until you are trying to enforce a document that you find means more or less than what you expected. Take these three trick language traps as examples:
1. “Reasonable Rights of Parenting Time”
For divorced dads, this is usually the biggest trap of all. “Reasonable rights of parenting time” sounds appealing – you will have reasonable parenting time, and the right rather than the option to that time with your child.
Many dads sign off on documents containing this phrase with the mistaken belief that reasonable time is better than the severely limited – or no – time that they have during their case.
Not so fast! In most jurisdictions, the phrase “reasonable rights of parenting time” has a specific definition.
In Michigan, for example, it usually means alternate weekends and one afternoon during the week – that is 52 overnights and 52 afternoons for the entire year. Add in a few holidays, and Dad has less than 25% of the year to spend with his child.
If you did not consult a handbook at the courthouse, then you would not have known otherwise by just this vague language. So, be sure to write down in your order or judgment the specific parenting time schedule you have in mind.
2. “By Mutual Agreement”
Often times, your order or judgment will require cooperation with your ex after your separation. For example, you may have to cooperate to sell your home after your divorce. As another example, you may have to communicate with each other before scheduling extra curricular activities for your children during each other’s parenting time.
If you see the phrase “by mutual agreement,” you would, naturally, conclude that you and your ex must work to agree mutually. However, such is not the case.
“By mutual agreement” means that you and your ex will not do X unless, and only if, the two of you agree. One of you may disagree for any reason or no reason at all, good or bad. If you disagree, then you are not doing X. Period.
To require cooperation, such that your judge can conclude one of you is acting in bad faith, the better phrase to use is “by mutual and reasonable agreement.” With this phrase, your ex must have a reasonable excuse for disagreeing; not just any reason at all.
For cases involving confidential settlement agreements, the judge often signs a shorter document (for the public record) that references the agreement (which remains private).
If you see the word “incorporate” in that shorter document, then you would logically conclude that the document is adopting the confidential settlement agreement and can enforce it even if the same terms do not appear in the shorter public document.
You would be correct. But wait! Enforce how?
In many jurisdictions, the word “incorporate” means that the confidential agreement remains its own binding and independent contract, a contract that is enforceable under the rules with respect to contracts – complete with longer statutes of limitation, civil lawsuits and penalties for defaults.
By comparison, the phrase “incorporated and merged” makes the confidential agreement a part of the judgment, with far fewer remedies for enforcing judgments, such as a shorter statute of limitation, in the event of default.
These are but a few of the tricky language traps in use. When faced with them, what should you do? The best course of action is to have a men’s divorce attorney review all of your documents with you and make sure that you understand each and every word.
Take your time, take notes, do your homework, ask questions, and make sure the contract that will bind your life is the one you understand.
Cordell & Cordell:
Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her Bachelor of Arts in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.