In order to craft strong, enforceable family law agreements, attorneys must consider incorporating certain provisions. This article sets forth a small selection of important provisions to consider.
Governing Law
If the agreement is drafted in California, include a provision that provides that, in the event of any challenge to the agreement or need for interpretation, California law will govern. However, since we are a transient society, attorneys should include language that will caution parties regarding the enforceability of the agreement should they choose to relocate to another jurisdiction. The parties should contact an attorney licensed in that jurisdiction to ensure their agreement will be enforced as anticipated. Support and property rules vary significantly from state to state (and country to country) and, as certainty is the goal of these types of agreements, encouraging clients to undertake these consultations in advance of any relocation is well worthwhile.
Modifications and Estoppel
Modifications to the agreement should only be made in writing, signed by both parties, with a specific reference to the document being amended. Additionally, attorneys should include language waiving any changes made by parties by acts or statements inconsistent with what is set forth in the agreement. For example, a party may be under the impression that if a late payment is accepted once, that changes the terms of the agreement.
Severability
Attorneys must carefully consider whether or not to include a severability provision. In most cases, parties want to be able to exclude a provision if it is later found to be unenforceable, but keep the remaining provisions of the agreement intact. In some cases, however, the terms may be so intertwined that severing one provision might inappropriately undermine other bargained-for provisions. For example, if a property division is unequal based upon a higher or lower support provision that is later invalidated, a severability clause may not be advisable.
Drafting Provisions
Because of basic contract law underlying all agreements and the issues that can arise due to later discovered ambiguities, it is important to set forth terms addressing the neutrality of the drafting. Specify that if one side did the initial draft, the other side had the opportunity to review and edit the agreement and the dates on which he/she did so. This is particularly important for premarital agreements where attorneys should also be familiar with laws governing the timing of drafts relative to completion of the agreements.
Provisions contained in a solidly drafted agreement can be reused in subsequent agreements, but each case needs to be reexamined in light of its own unique factors.
This short article clearly cannot provide all provisions which attorneys need to be mindful of, but it can alert attorneys to some important factors to consider.
About the Author:
Yasmine S. Mehmet has been a practicing family law attorney for over 25 years. She is a Fellow of the American Academy of Matrimonial Lawyers and is actively involved in a number of family law organizations.
