Family Law Agreements: Effective Drafting Requires Precision

A Marital Settlement Agreement (MSA) can be a useful tool or a serious problem for one or both parties upon being finalized by the Court in a Final Order. The Family Law Lawyer must take great care in the drafting.

Many people are surprised by the length and detail of a well-drafted MSA.  Another frequent surprise:  the unintended, and often unfair, consequences of drafting errors made by a Family Law Lawyer for a client who thought their MSA represented a fair deal.

For example, consider this case recently reported from North Carolina:

On August 17 the NC Court of Appeals overruled a finding of contempt by the trial court in the matter of Walter v Walter due to the drafting of a summer visitation schedule.

At issue in the Walter matter was Dad taking a 3rd week of summer holiday with the children over Mom’s objection who claimed the agreement only provided Dad 2 weeks. It would appear to be a clear violation of the terms of the settlement agreement, but Dad pointed out that the agreement did not limit him to only 2 weeks of holiday time in the summer.

The settlement agreement provided Dad with “…at least two non-consecutive weeks during each summer (school) vacation period of the minor children…” (emphasis added). The Court of Appeals found that the terms of the agreement did not limit Dad to 2 weeks, because of the two word “at least”.

So what now? How much holiday does Dad get in the summer? 3 weeks, 4 weeks, perhaps all weeks except Mom’s 2 weeks?  Does Mom have a legal basis to request a modification of the agreement (very likely not)?

Just those two words- “at least”- missed by Mom and her lawyer, have now caused quite a mess for this family.

Family Law clients are particularly vulnerable to problems from drafting errors.  Drafting can have positive or negative consequences on issues of custody and communication as well as finances. The attorney must ensure that the MSA is clear and specific.  All parties should be able to read and understand the document (with some guidance) and no question should go unanswered.

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