Most domestic disputes resolve via a written agreement, which is generally seen as preferable to litigation. Some of these agreements are drafted with both parties in full agreement as to most if not all of the material terms. Some are drafted are long and grueling negotiations, with nearly every material term being a hard-fought compromise. Finally, a surprising number are drafted in the hallways of the courthouse, immediately before the parties are to litigate a particular issue, with many of those consisting of handwritten provisions drafted by one or both of the attorneys.
No matter how a written agreement is reached, it is important that it is drafted or reviewed by an experienced attorney. Even in a case where everything is agreed upon, you should use an experienced attorney to draft the final agreement as latent ambiguities or unintended consequences can arise years after the agreement is drafted. Small errors or omissions could have major implications with significant financial impacts and even impacts on custody. Even on those agreement wherein all terms are easily agreed to, it is important to make sure no major issues have been omitted (i.e., have tax consequences been considered; how will uncovered medical expenses for minor children be covered; how and when will certain payments be made?).
There is a large body of case law that states a court is not allowed to save someone from a bad deal of their own making just because it is a bad deal. This means that you can make major mistakes in a written agreement and the court will not be able to help you fix them later. Rescinding or modifying an agreement can be extremely challenging and will not be possible in every case.
No agreement can perfectly anticipate every future event and completely prevent any further litigation. However, the best way to deal with the threat of future litigation or problems is to use an experienced attorney to help make sure you don’t end up in this predicament to begin with. Spending some money to make sure your agreement is fair and complete will likely save you much more money in future litigation cost.
We work with clients to come up with creative, detailed agreements that help solve tough problems. We rely on our past experience to spot issues that the parties may not have considered. We work to ensure that the agreement does all it can to resolve any contested issues between the parties and is in the best interest of our clients and their families.