Drafting divorce agreements and MOUs
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Bultz: The parties have settled now what getting it in writing
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Drafting divorce agreements and MOUs
- 1. Page 1 of 3 2014 ACR Annual Conference October 8-11, 2014 Cincinnati, Ohio The Parties Have Settled! Now What? Getting It In Writing! Drafting agreements and memorandums of understanding for separation and divorce. - Jay Bultz, Esq. Outline & Materials I. ISSUES SPECIFIC TO DRAFTING AGREEMENTS & MOUs Goals: Predict the future behavior of divorced couples. Clear, unambiguous, and made-to-order. User friendly. Specific language for each couple’s unique needs. Create a framework and plan of action for the end of a marriage. Create certainty related to new obligations. Comprehensive. Master form tool - all relevant issues - logical order - keep on task - options each issue - invite discussion. Who Drafts the Agreement? Non-attorney mediators probably should not prepare “Agreements.” Unauthorized practice of law? Prepare a “Memorandum of Understanding” (MOU) or “Memorandum of Agreement” (MOA)? This outline and accompanying materials are intended to be used solely for educational purposes. Nothing contained herein should be construed to be legal or tax advice. Individuals reading this outline and materials should consult their own legal and tax advisors for advice.
- 2. Page 2 of 3 Mediators preparing agreements? Mediator is neutral third party. Will remember the details, concerns and nuances of what was discussed and agreed to. Parties’ attorneys may spin and/or dispute. Words Language that is user friendly. Be clear and direct. Be positive, reinforcing, and encouraging. Cooperation should be emphasized. Level of detail depends upon the level of cooperation. Trend - “Parenting Plan & Schedule” as opposed to “Custody & Visitation.” Must still pass court muster. Most courts still require the “custody” and “visitation.” Must still be legally enforceable. More dynamic than any other legal agreement. Agreement as Contract Marriage is both a status and a contract. Legally sanctioned contract between a man and a woman (traditionally). Changes the legal status of both parties - new rights and obligations. Laws of marriage and divorce are analogous to the laws of contracts. Contracts can be modified by other contracts - basic contract law. Family court jurisdiction and authority reviewing and approving an agreement - fair and equitable - entered into it freely and voluntarily - best interests of the children. Enforcement By the Court… By Contract… By Estoppel…
- 3. Page 3 of 3 Integration All clauses must be in harmony and not conflict!!! Practice Notes Keep Parties Out Of Future Litigation! Mediation… Arbitration… Use Experts! Collaborative Law! Attach Exhibits for Explanation & Clarity! Reserve Jurisdiction of the Court! Enforcement… Dispute resolution… QDROs… II. MASTER AGREEMENT – CHECKLIST (see attached)