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Three Best Practices When Drafting a Marital Settlement Agreement

By Joryn Jenkins

When drafting a marital settlement agreement, follow these best practice tips:

1) Avoid ambiguity.

Your language should be clear; it should avoid confusion and contradiction. If your language is open to interpretation, you had better believe that one party will interpret it one way, and the other party another way. The result will be uncertainty, disagreement, and, ultimately, post-judgment litigation.

This is precisely what we are trying to avoid. To avoid ambiguity, run your language by another professional to get his view on what he thinks you mean. Especially when drafting new templates that you intend to use often, discuss the language with several staff members to research whether there are interpretations that you hadn’t considered. Just as we tend see what we think we wrote, leaving out words that we were sure were already there, sometimes we get so wrapped up in what we are trying to say that we overlook the other meanings that our actual language may have.

2) Be as detailed as the divorcing couple will allow.

Detailed agreements offer solutions to many typical problems that the divorcing couple may encounter at one time or another. Thus, if the parties can’t agree on something, the marital settlement agreement should be able to provide a resolution. So the more detailed you can be, the less likely the couple will have unresolvable disagreements after their divorce. Of course, some clients will not allow for a very detailed agreement because one or both of the spouses will be hesitant to agree on many issues ahead of them becoming real. But, when possible, be as detailed as possible.

3) Avoid cookie cutter form agreements.

You can find form marital settlement agreements online, but avoid using these agreements, unless they are court-ordered form language. When using form language, modify it to meet the needs of the couple for whom you are drafting the agreement. Every couple is different and has different needs and wishes. The same language won’t work for every couple, so tailor your agreements to the specific needs and goals of each couple.

If you follow these best practices, your marital settlement agreements will best meet the specific needs of your clients and will result in less post-judgment litigation.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, 2 of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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