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POOR DRAFTING OF DIVORCE AGREEMENTS CAN BE DOUBLE-EDGED SWORD

Drafting divorce agreements is a perilous pursuit. It calls upon divorce attorneys to anticipate events way out in the future. Sometimes, it is impossible to anticipate the future, but many future problems can be prevented by careful draftsmanship. Attorneys should create a checklist for drafting agreements which is designed to prevent error. Our policy calls for agreements to be as specific as possible. For example, all assets and liabilities are specifically listed by name, bank and account number. Our checklist requires the drafter to specify what is to be paid, when the payments are to start and when the payments are to end. Nothing should be left unstated. (This checklist is found in Mark Chinn’s latest publication, Forms Checklists and Procedures for the Family Lawyer, available at ababooks.org.

The recent case of Lestrade v. Lestrade, NO. 2009–C)A0001354–COA (Decided November 9, 2010), tells this story well. In an agreement drafted in 1989, Audrey was to receive “one half of Oscar's Civil Service Retirement.” Well, Oscar didn’t retire and was still working at 71. Audrey sued, claiming she assumed he would retire at 65. The lower court agreed and reformed the agreement. The Court of Appeals reversed and said it was Audrey’s fault for not specifying when she would get the benefits. On appeal, Oscar complained that once he did retire, Audrey would be receiving one half of benefits he earned after the divorce. Again, the Court held that Oscar had failed to specify when Audrey’s right to accrue benefits ended, so they denied his Motion. The sword cut both ways.