Using an experienced divorce attorney to draft a comprehensive settlement agreement can help prevent post-judgment litigation in divorce proceedings. The Law Offices of Diane J.N. Morin, Inc. will review your specific needs and tailor a settlement agreement to protect yourself and your assets from future litigation.
Why Divorce Judgments Break Down: The Most Common Causes of Post-Judgment Litigation
There are many common causes of post-judgement litigation, and unclear communication or non-collaborative negotiation is at the heart of most of them. The goal of the Law Offices of Diane J.N. Morin, Inc. is to help you draft settlement agreements that will allow you to bypass litigation altogether.
- Vague, ambiguous language in a divorce settlement creates an opportunity for competing interpretations of the terms, opening the door for additional litigation to determine the intended meaning of the settlement. An experienced divorce attorney can eliminate this cause through skillful drafting of the settlement terms.
- If there are no consequences for non-compliance with the settlement agreement or missing deadlines stipulated in the settlement agreement, litigation could be necessary to enforce the settlement agreement, increasing time, costs, and stress.
- Failing to plan for life changes, such as job loss, remarriage, death, relocation, or other needs that would require support modifications, can also result in post-settlement litigation.
- Care must be taken in dividing assets to ensure all assets are accounted for and allocated during the divorce settlement, especially in California, where property must be divided equally. Failure to completely divide assets can leave loose ends that must be resolved through post-settlement litigation.
- If there are any children involved in the divorce, parenting plans must be drafted and integrated into the settlement agreements with dispute resolution mechanisms in place to avoid contentious litigation.
Aside from the financial costs of post-settlement litigation, there are hidden costs affecting relationships, emotions, and time spent in the court system. Pursuing collaborative divorce and mediation with the Law Offices of Diane J.N. Morin, Inc. to avoid litigation and the associated costs can be a strategic, low-stress way of finalizing divorce proceedings.
The Foundation: What Makes a Settlement Agreement Legally Enforceable
A marital settlement agreement is when the divorcing couple decides between themselves how issues of their divorce, property division, spousal and any child support, and any tax obligations will be handled. An MSA is written from the perspective of the divorcing individuals, i.e., “the parties agree that visitation shall be on a biweekly schedule.”
With a court judgement, the structures are more rigid and carry heftier legal penalties should either party fail to uphold the terms of the agreement. Additionally, a court judgment is written on behalf of the judge, i.e., “the court orders that the property must be sold and proceeds from the sale split within 18 months.”
California law dictates that when a legal document, such as a divorce settlement agreement, does not contain any ambiguity of terms, only the details specifically written out in the instrument can be considered, and extraneous evidence cannot be a factor; this law is also known as the “four corners” rule. If details of the divorce and agreements made by the parties are not spelled out explicitly in the settlement agreement, should disputes arise that result in litigation, only the written terms of the agreement can be taken into consideration by the courts under this rule. Oral agreements and side letters cannot be considered into evidence or used to interpret and enforce a divorce judgment, which makes consulting an attorney with the Law Offices of Diane J.N. Morin, Inc. crucial in navigating a divorce.
Boilerplate language in a divorce settlement is truly not a convenience, as it has built-in ambiguity as a feature to make it applicable to as many people as possible. This creates liability as a divorce settlement agreement must be tailored to your situation and circumstances, with allowances for individual concerns and concessions.
Once the marital settlement agreement is finalized and signed by both parties, it must then be submitted to the courts. After the court receives your submission, the documents will be reviewed for completion and to ensure there are no mistakes. If everything is in good order, the judge will approve and sign the documents, entering them into the court record with an official divorce/dissolution date.
Precision in Language: Drafting Clauses That Cannot Be Misread
Precision in language is required to eliminate ambiguity and interpretation in legal documents. As an example, in California, the term “shall” means the action is mandatory, with no room to interpret a different strategy, while the term “may” is permissive and simply means the party is allowed to pursue that course of action but isn’t necessarily required to do so.
When setting terms in a divorce settlement, they must be both reasonable and usual in the circumstances, and specific to the parties involved in the divorce and spelled out to reduce confusion and ensure compliance, and hopefully prevent future litigation.
Key terms in the agreement must be defined to prevent any misunderstandings as to what was actually meant – for example, if the term “primary residence” is used in the settlement, details of what is considered the primary residence and any stipulations on where it must be located need to be written down to set those terms in stone.
Generic, catch-all phrases should be avoided, as they open the door to uncertainty and interpretation, which can quickly lead to post-settlement litigation.
Details concerning asset transfers, real estate divisions, allocation of business assets, or splits of retirement accounts should be laid out with as much specificity as possible. For real estate, legal definitions and parcel descriptions should be included, as well as timelines for title transfers, sales, the allocation of any proceeds, or the assumption of mortgage responsibilities if selling the property is not feasible should be specified in the settlement agreement in clear terms.
Terms such as “as agreed upon by the parties” should be avoided, unless a follow-up mechanism is included in the settlement agreement or unless the agreement was previously stated in the document. A term such as this leaves the agreement open for a “he-said she-said” argument should any litigation be pursued in the future.
Building in Contingencies: Drafting for Life After Divorce
An attorney well-versed in divorce settlement agreements, such as those at the Law Offices of Diane J.N. Morin, Inc., will include contingencies for future scenarios – a good agreement must anticipate what could go wrong and include resolutions for those situations.
Life does not stop after a divorce, and can take a variety of different paths that must be accounted for in a settlement agreement.
- If there are spousal or child support agreements, should the party paying the support lose their job or face an income change, support orders might need to be changed, and the settlement agreements should include modification triggers to prevent the need for a court order to mandate a modification. These agreements regarding spousal support must also include clauses related to remarriage and cohabitation, and how the term definitions and one party’s status in these relationships affect any support obligations from either party.
- With divorces involving children, relocation clauses are common in settlement agreements, setting into place any notice requirements to the non-relocating party, what the consent procedures are for the non-relocating party to agree to allow the other to relocate, and how disputes will be managed and resolved.
- Per California law, the obligation of one party to support the other ends with the death of either party, unless otherwise agreed upon in writing. This support can include provisions for life insurance, beneficiary designations, and other considerations, so speaking to an experienced attorney is crucial.
- Child support considerations in a settlement agreement must include provisions for as the children age out of typical child support and should factor in any college financial or housing support, which party will provide medical coverage, which party will claim the child on their taxes, and whether that alternates, and how to manage the transition off child support.
- If there is real estate to be divided, contingencies for if the property does not sell in a timely manner, and how taxes and maintenance are to be paid, what to do if appraisals conflict with each other, and how to handle disagreements in handling the property should be in place in the marital settlement agreement.
Deadlines and Timelines: The Provisions Most Often Left Incomplete
Open-ended obligations can drag proceedings out long past when parties to the divorce are ready to put them behind them and move on with their lives. Without deadlines for division of assets, transfer of property, refinancing real estate, paying off debt, closing accounts, or separating credit, the divorce can continue to eat up time, energy, and money from both parties.
When setting deadlines in a divorce settlement agreement, consequence clauses specifying penalties for missing deadlines must be included to ensure adherence to agreed-upon timelines.
Your divorce attorney with the Law Offices of Diane J.N. Morin, Inc. will track these obligations, following up with the other party to ensure timelines are being followed and deadlines aren’t missed, and should a deadline be missed, work with the courts to enact the consequences detailed in your agreement.
Enforcement Provisions: Writing the Agreement So Courts Can Act
Written agreements, not oral ones, are what are enforceable in California. To be enforceable, the agreement must not only be written, but written in specific, unambiguous language and filed with the courts for their approval and entered into the official court record. An informal agreement cannot be enforced, as it was made outside of the court system.
In a contentious divorce with court orders involved or one that required a court order to establish spousal or child support or order the division of property, contempt of court can be used as an enforcement mechanism. This will allow the courts to enact penalties to force compliance with the terms of the divorce settlement.
To reduce litigation risk after the divorce is finalized, clauses can be added to the settlement agreement that state that if one party forces litigation rather than pursuing mediation or arbitration (typically less costly methods of dispute resolution), that party is responsible for paying the attorney and court fees for the other.
Mediation and arbitration clauses can help resolve disputes without heavy emotional ties behind them, but in more contentious cases, they might only serve to draw out the conflicts where a court judgment would be quicker and less emotionally, mentally, or financially taxing.
Special Considerations: High-Asset, Business Owner, and Complex Cases
Complex divorce cases serve to highlight the importance of precise drafting of divorce settlement agreements. Whether they involve high-value or numerous assets, business, or procedurally complex cases, the more specific the settlement agreements can be, the fewer problems can arise later.
Divorce can have impacts on dissolving or restructuring business partnerships, liquidating stock options, or managing deferred compensation and the tax treatment of business assets. If there are multiple properties, both business and personal, with varying equities and liabilities that need to be divided, those provisions must be stated in clear, unambiguous language.
Should any trusts or estate documents be in place, speaking with a high-asset divorce attorney is a critical step to understanding how the divorce will interact with and alter existing estate documents.
These scenarios require specialized knowledge and years of expertise to navigate successfully, and a general divorce attorney is ill-equipped. With more than 30 years of experience drafting complex divorce settlement agreements, the Law Offices of Diane J.N. Morin, Inc. is well prepared to take on your case.
Talk to a Professional Divorce Attorney About Your Settlement Concerns
Whether you are approaching a divorce settlement, drafting an agreement yourself, reviewing a settlement proposed by the other party, or managing a dispute post your divorce, the Law Offices of Diane J.N. Morin, Inc. is available for a consultation. Reach out today to schedule a conversation and ensure you and your assets are protected in your divorce.