Preface

Introduction

This work is the result of many years of conscientious craftsmanship and the result of cleaning up messes and fixing subsequent bad results from incomplete, incomprehensible or unworkable poorly drafted agreements. While no one can completely predict the future behavior of divorced couples especially given a human being’s ability to create problems, an experienced professional can round up all the usual suspects (typical issues) and cover them quite well with prophylactic measures. Your clients may ask, “Is all of this necessary?” but telling them that, “Yes, it is. Trust me.” will be better than having them come back and say, “We have a problem and this agreement doesn’t cover it!” That, of course, is a judgment call.

A clear, unambiguous, and made-to-order agreement will take more time to write. However, the benefits to the clients will more than justify the extra work. Agreements will be ignored when clients are getting along but when they run into the inevitable conflicts, a well- written agreement is essential. Clients should have set guidelines that are easy to understand and provide clear direction. The professional’s job is to create a user-friendly agreement that is specific to each couple’s unique needs and addresses not only the usual, but the unusual situations that will likely arise on down the road.

While agreements create a framework and plan of action for the end of a marriage, they often create new obligations as well. To create certainty related to these new obligations, agreements must be comprehensive and well constructed. To that end, having the rights tools and resources is essential.

A master form is an excellent tool for guiding the parties through all of the relevant issues in a logical order and keeping the parties, and the professional, on task. With such a tool it is easy to mark any issue as “undecided” and come back to it later without it being forgotten. A master form will provide various options for each issue and invite exploration of more alternatives and a more thorough discussion of the specifics of each issue. This Master Agreement is that tool!

Instructions for Use

Create your own Master Agreement. Download this Master Agreement and make changes to suit your own personal preferences, e.g., change “Jane and John” to “Wife and Husband” or “Mother and Father” or “Plaintiff and Defendant,” etc. Hopefully no one is still using, “Party of the First Part” and “Party of the Second Part.” Add, delete, or modify words or entire provisions as you deem appropriate.

Print a working copy. Print a working copy labeled for the case and use it in session as an outline, checking off the headings and paragraphs to be used and making changes and notes as needed.

Word processing. Open up your modified Master Agreement and save it as a new document under the name of the case you are working. Make global changes for the names and change “children” to “child” as needed. Delete all of the sections and paragraphs that you will not be using. Modify, add, subtract as needed for the remaining document. Create supplemental documents as needed cover, table of contents, acknowledgments, certificates, exhibits, financial declarations, etc.

Draft. Print a working draft to review for any changes. Then print a draft for the clients. Mark it as “draft” and date. Review with clients and mediate further as necessary. “Draft” is important to show clients that the document is a work in progress and may need further discussion and development. Otherwise they may fear that it is their final decision on matters if they are still undecided. Having it dated keeps everybody on the same document if subsequent drafts are produced.

Final. Print the final agreement or memorandum of understanding for signature and attach the supplemental documents. Refer for legal action to take to court for approval and order.

NOTE: This Master Agreement form provides numerous alternative clauses for most of the topics and issues. Some provide certain rights and responsibilities and some waive certain rights and responsibilities. Make sure each paragraph is carefully read and drafted for the intended purpose!

Who Drafts the Agreement? Mediator vs. Attorney

First of all, non-attorney mediators probably should not prepare “Agreements.” It could be construed as the unauthorized practice of law in most jurisdictions. (See discussion on contract law below.) Non-attorney mediators probably should prepare a “Memorandum of Understanding” (MOU) or “Memorandum of Agreement” (MOA) instead. For non-attorney mediators using this form as a MOU or MOA, use the appropriate introductory paragraph, delete the “Recitals” section and begin with “Marital Rights & Obligations.” Then delete the “Administrative” section and use the appropriate “Signatures” section. Finally, do a global “Find & Replace” to substitute “MOU” or “MOA “for “Agreement.” In drafting a “Parenting Plan,” follow the same instructions although there is not the same legal issue of drafting a legally binding contract or agreement because the family court will “over-ride” any provisions not in the best interests of the children.

There is some debate as to whether attorney mediators should prepare agreements or turn them over to an attorney for one of the parties. I believe that attorney mediators should prepare the agreements for several reasons: (1) The attorney mediator is a neutral third party. Language in an agreement potentially can be “spun” to favor one party or another which would be the natural inclination of an attorney representing either party. The attorney mediator is ethically obligated to keep it neutral. (2) If an agreement is drafted by one party’s attorney and the other party’s attorney has an objection then the attorney mediator has to mediate that dispute an unnecessary waste of time (and money). (3) The attorney mediator was there when the parties discussed, negotiated and reached the agreement and, therefore, will remember the details, concerns and nuances of what was discussed and agreed to all of which could get lost in translation if written by a third party trying to interpret someone else’s notes. Finally there is the “bias against the scrivener” doctrine any ambiguity will be construed against the party (their attorney) that prepared the agreement unless both had a hand in it and that circumstance is set forth in the agreement. Better it be the neutral third party attorney mediator!

A Word About Words

First and foremost an agreement must be responsive to the needs of the parties and the children. To that end, it is most desirable to use language in an agreement that is user friendly while avoiding as much legalese as possible. However, an agreement must still pass court muster. While language in a legally binding contract or agreement must be clear and direct, in the context of divorce, language should also be positive, reinforcing, and encouraging for the future. Especially when children are involved. Cooperation should be emphasized and mechanisms should be put in place to encourage and provide for cooperation.

The level of detail in an agreement depends upon the level of cooperation of the parties. For example, a cooperative couple can live with something like, “Holiday time with the children shall be shared.” Whereas a non-cooperative couple will need the date, time, place and transportation details spelled out for the holidays even including what activities the children will or will not participate in.

In regards to children, the trend has been towards language that emphasizes the nurturing role of parents. For example, setting up a “Parenting Plan” as opposed to “Custody & Visitation.” The latter being more appropriate for prisoners or property. Unfortunately most courts still require the “custody” and “visitation” terminology in order to determine how to resolve a conflict by applying a hundred years of law. An agreement must still be legally enforceable. However, that does not mean that nurturing-focused language cannot be used. For example, one area that can and has been improved is how schedules have been established in agreements. Instead of parents “having” their children for certain specified times, the children will “be with” or “spend time with” or “share time with” each parent.

The choice of wording in a divorce and/or parenting agreement is much more dynamic than any other legal agreement. Therefore, drafting such an agreement takes on a whole new dimension in order to be responsive to the needs of the parties and the children.

Agreement as Contract

Marriage is interpreted as both a status and a contract. In the English Common Law tradition from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. Today, the underlying concept that marriage is a legal contract still remains but due to changes in society, the legal obligations are not necessarily the same. Marriage has traditionally been defined as the legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of husband and wife in law for life, or until the legal termination of the relationship.

Marriage is a legally sanctioned contract between a man and a woman. Entering into a marriage contract changes the legal status of both parties, giving the husband and the wife new rights and obligations.

The laws of marriage and divorce are analogous to the laws of contracts. For example, commit a fault ground for divorce such as adultery, physical cruelty, habitual drunkenness, etc., then the contract of marriage has been breached and can be terminated in a divorce action; or, if there was lack of capacity (in some cases fraud or misrepresentation) entering into marriage, then the contract of marriage is void (or voidable) and can be annulled in an annulment action. For a “no-fault” divorce based upon the parties living separately for a period of time, the marriage can be terminated for “want of” or “lack of” consideration, i.e., there no longer exists the exchange of the reciprocal rights, duties and responsibilities between the parties.

Contracts can be modified by other contracts. Likewise, marital agreements contracts, can be used to modify the “marriage contract.” For example, premarital agreements made in contemplation of marriage; marital agreements made while still living together but not in contemplation of separation or divorce; separation agreements made in contemplation of or after separation; settlement agreements made to settle marital litigation; and reconciliation agreements made in contemplation of resuming the marital relationship after separation or during litigation.

Therefore, to write an enforceable agreement, basic contract law as well as the marital status of the parties should be addressed. The elements for drafting a marital agreement should include: (1) clear identification of the parties and the purpose to change marital status; (2) consideration give and take on both sides; (3) full and fair disclosure of income, assets and liabilities (usually by attaching financial declarations); (4) clearly expressed terms and changes in status; and (5) free and voluntary execution by the parties.

In reviewing and approving an agreement, the family court, as a court of equity and the protector of children, will also consider whether it is fair and equitable to the parties under the circumstances, whether the parties entered into it freely and voluntarily and whether it is in the best interests of the children (if any) before making it an order of the court.

Enforcement

By the Court. Once an agreement has been reviewed and made an order of the court, it is then enforceable by the contempt powers of the court. Generally that could include: jail time, a fine, community service, and reimbursement of legal fees and costs. However, noncompliance must be found to be willful. The standard mechanism for bringing a violation of an agreement before the court is a “Rule to Show Cause.”

By Contract. Frequently, parties need to take care of financial and property matters before their agreement is made an order of the court. Financial institutions and other entities will want to see that the parties are legally bound by an agreement before loans and/or transfers are made. Another example would be in situations where one (or both) of the parties dies. Their estate(s) would be bound by a legally enforceable agreement that contains waivers regarding inheritance.

By Estoppel. Occasionally, as a party complies with their obligation under an agreement the other party may accept that benefit but then not comply with his or her reciprocal obligation and repudiate the agreement. For instance, the wife may sign over her interest in the marital residence to the husband but then he refuses to pay her share of the equity. If the agreement is not an order of the court or otherwise falls apart, equity under the doctrine of estoppel would require that the husband make payment or that the wife’s transfer be nullified and the matter would then have to be litigated or resolved in some other fashion.

Integration

It is imperative that all clauses in your agreement are in harmony and do not conflict. For example, if you provide for arbitration you must provide the statutorily required notice at the beginning of the document. Or, if you provide for a division of a qualified retirement account you should provide that it will be divided per a supplemental order known as a “qualified domestic relations order” and provide for the court to reserve jurisdiction for such. Or, if you provide for alimony, you shouldn’t provide for the filing of joint returns. Again, as to alimony, if you set up non-modifiable alimony, don’t provide conditions for modification. Of critical importance is paying attention to the tax consequences of certain provisions in your agreement, particularly in regards to alimony and tax returns. Notes regarding basic tax tips are included throughout this book. Pay attention to them. There is nothing better than getting good, sound tax and financial advice from an expert!

Practice Notes

Keep Parties Out of Future Litigation!

Mediation. A provision for mediation of future disputes should be standard in every agreement except in cases involving domestic abuse or threats of such. Those should be handled on a case by case basis and if mediation is pursued, special protective provisions should be put in place. Also, in cases involving a dramatic imbalance of power, e.g., one party has an attorney and the other cannot afford one, special provision should be made for the latter to obtain legal advice since the mediator cannot provide such.

Arbitration. Arbitration can be used for all issues between the parties except issues of child custody and related matters. The family court has exclusive jurisdiction over those. Arbitration is particularly useful in situations involving the sale of real property such as the marital residence. Arbitration can be used for determining fair market value, selection of a realtor, setting the listing price, changes to the listing price, and accepting offers. Of course, arbitration can be used for the division of marital property in the first place. Note that any agreement containing an arbitration provision must contain notice of such on the first page for the provision to be enforceable. S.C. Code §15-48-10, et seq.

Use Experts!

Using a “Collaborative Law” Practice approach to resolving complicated and/or difficult issues will assure both the parties, as well as the practitioners, that the best resolution is being achieved. For example: Use appraisers for real property valuations and websites such as Kelly Blue Book (kbb.com) which work well for valuing vehicles; Use financial experts CPAs, particularly those that are a Certified Divorce Financial Analyst (CDFA) for property division, support, retirement accounts and QDROs, taxes, etc.; Use mental health professionals to act as a divorce coach or a parenting coordinator. “Collaborative Law” is an alternative dispute resolution method that has two significant aspects. First, the attorneys sign a disqualification agreement that prevents them from taking the dispute to court (although the parties could hire other attorneys to go to court) and second, the parties utilize other professionals targeted to their specific needs as set forth in the foregoing example.

Attach Exhibits for Explanation & Clarity!

For example: Any report or document produced by an expert described above; the parties’ Financial Declarations; an Equitable Apportionment of Marital Property Worksheet; an amortization schedule for installment payments of equitable distribution; calculations for reduction of future payments to present value; etc.

Reserve Jurisdiction of the Court!

Enforcement. Once an agreement is approved and made an order of the court, that court has continuing jurisdiction for enforcement. No special provision is necessary. If an agreement is not made an order of the court, enforcement will have to made by other means. However, the family court will always have jurisdiction over matters concerning minor children. The court may or may not enforce provisions in an unapproved agreement. The court would have to review and approve it first.

QDROs. It is imperative that a court-approved agreement reserve jurisdiction to issue a supplemental order known as a Qualified Domestic Relations Order (QDRO). Once a court issues its final order in a case, it cannot issue another order in the case without a specific reservation of jurisdiction or another action being filed, served and brought before it. Also, jurisdiction should be reserved for amendments. Some financial institutions are notorious for sending back QDROs for amendments even though you meticulously followed their requirements and instructions.

Feedback

This work is not perfect (yet) so please give feedback be it good, bad or ugly. All comments are welcome. This is a work in progress. If you should find and be kind enough to report a problem or defect with this document or would just like to comment or make a suggestion, please contact:

Bultz Law Offices
417 79th Ave N
Ste A
Myrtle Beach, SC 29572

(ph) 843-626-2006
(fax) 843-839-9496
bultzlaw@gmail.com