Divorce Attorney Tips: Protective Language In Your Decree

Protective Language

What kind of language should be included or avoided in a decree / settlement agreement?

  Camille Pedrick, New Mexico divorce attorney

The most important kind of language to include in a final decree or settlement agreement is unambiguous language. Many times, parties think they will ‘work out the details’ later.

This plan often backfires, as many cases that come into our office are cases where the parties need help in clarifying / modifying / enforcing previously-drafted agreements or final decrees.

It is important to remember that parties can always deviate from an agreement if both are on the same page. A well-drafted, unambiguous settlement agreement or final decree is a safety net since it gives both parties language that is direct, clear and enforceable.

  Anne Scipior, Wisconsin divorce attorney

I would avoid any type of language that leaves agreements open-ended. Sometimes when a divorce has been amicable, I see people enter into agreements that state things like, “Once child support ends, the parties agree to work together to modify maintenance.”

While the idea that you and your ex could reach agreements on something of this nature is nice and is certainly possible in some situations, it opens people up to future litigation if they cannot reach agreements. If it’s possible to negotiate a complete resolution at the time of divorce, that’s best. No one wants to be stuck re-litigating their divorce 10 years after the fact.

I would strongly recommend that when it comes to children, you include specific language about how variable expenses will be paid for and what qualifies as a variable expense. In Wisconsin, variable expenses are defined as child-related expenses that are above and beyond basic support costs — things like school fees, extracurricular activity fees, driver’s education course costs, etc.

Even if there is child support ordered to assist with basic support costs, the parents typically split these variable expenses either equally, or in accordance with the percentage of placement each parent has with the children. Make sure that these variable expenses are well defined and that there is some language about having to consult with each other about incurring a variable expense over a certain amount can save people lots of grief down the road.

  Marlana Caruso, Colorado divorce attorney

You should be as specific as possible with any language used in your final decree — yhere should be absolutely no room for interpretation as to any of the agreed upon terms. In other words, say what you mean and mean what you say.

Furthermore, it is always beneficial to have “hold harmless / indemnity” clauses included in any agreement. This provides some protection to you through the family courts in the event that the other party does not adhere to repayment terms, especially when it involves a third-party creditor.

Each state has very specific laws regarding required language for enforceability of terms, etc.,  so remember to speak with an attorney in your jurisdiction regarding those individual requirements.

  Rebecca DeVincent, Virginia divorce attorney

It is really important that your final decree is specific; this is not something that should have vague or loose terms. Some states limit a court’s jurisdiction to modify spousal support that was agreed to by the parties and incorporated into a final decree of divorce unless the decree specifically states that the support amount can be modified.

To be on the safe side, you want to be sure that there is modification language in the decree so you have recourse in the future in the event your situation changes.

  Maura Boogay, Pennsylvania divorce attorney

Many divorcing couples resolve their claims by way of a property or marital settlement agreement, which will be incorporated into their final divorce decree. The language which is included in such an agreement is obviously largely dependent on the specific facts of the case. Some areas to pay attention to are as follows:

  •  If opposing side is pro se (representing themselves), there should be protective language indicating they were fully apprised of and aware of their right to retain counsel in the drafting execution of the agreement. This protects against a future claim that the other side was not fully aware of this right.
  • It is helpful to have language that addresses full disclosure of the marital estate and each party’s assets and debts. Agreements can be overturned for lack of full disclosure or any concealing of a fact that may be considered fraudulently withheld.
  • It is important generally to have contingency language for various scenarios. Say, for example, one party is going to refinance the marital residence and buy out the other party’s interest. There should be protective language in the event the refinance fails for whatever reason, to protect the other spouse. Often contingency language here would be that the house is lie to be listed for sale in a certain period of time.

You do have to be careful to provide for the unexpected yet possible, because anything can happen after execution of the agreement and the best agreements close the door on future issues which would otherwise have to be litigated.

  William Phelan, Pennsylvania divorce attorney

An important item in a marital settlement agreement that should be considered for incorporation or merger into a divorce decree is some type of term that allows the parties to amend their agreement at a later time.

Usually, the ability to amend a marital settlement agreement needs to be done with the consent of both parties. Regardless of what may need to occur in order for there to be an amendment, having such a term can provide significant peace of mind. Just as life changed so much as to lead the parties to a divorce, it can similarly change again after the agreement is reached and the divorce decree is entered.

Changes in someone’s finances, the needs of a child or the status of a particular piece of property can occur after the agreement is signed and the decree is entered by the court, and sometimes it may be critical to have the ability to address these changes even though the marital settlement agreement originally addressed these issues.

Allowing the parties to change the agreement on their own — without the need to go to court — can save the parties time and money later.

  Anna Reynolds, Florida divorce attorney

Do include:

Very specific language — Details are of the essence when it comes to parenting plans. You can avoid a lot of disputes down the road if things are clearly spelled out in the final judgment. Include times, exchange points, dates, and any other information that will simplify future communications with the other party regarding your children.

Language that is comprehensive — Make sure that all of the pending issues in your divorce are included in the final judgment. Whatever is not included in the final judgment may be lost as an issue forever. While you can modify certain provisions of a final judgment, like child support or timesharing, you cannot bring up any new issues that you may have forgotten.

Don’t include:

Language that prohibits modifying a particular provision down the road — The best example of this relates to alimony. Never agree to alimony that cannot be modified. No one can predict the future.

Language you have not fully reviewed with an attorney — This is a no-brainer. I cannot tell you how many potential clients come to me with final judgments they’ve already agreed to that contain unfair provisions that could have easily been spotted by a competent attorney. Once the final judgment has been entered by the court (signed by the judge), it’s typically too late to go back and change anything.

  Kara Didier, Oklahoma divorce attorney

The most important quality that a final decree should have is language that is enforceable. Ensure the text should is clear — the last thing you want is for a judge or arbitrator to not enforce a clause because the meaning is ambiguous.

One way to ensure the language is enforceable is to draft the final decree in plain English, which means the language is simple and conveys ideas with the greatest possible clarity.

The clauses in a final decree should be arranged in a logical sequence. Generally, it is a good idea to keep sentences short. If the clause is long, consider dividing the clause into sections. Clauses should not repeat or contradict what has already been stated in the document.

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