Updating your Divorce Agreement Template - More Lessons from Cavanagh v. Cavanagh

We recently posted a lengthy review of the the Massachusetts SJC decision in Cavanagh v. Cavanagh (2002) which included some recommendations for drafting divorce agreements, also typically called Separation Agreements.  The Cavanagh case is best known for it's clarification of how the courts should evaluate support calculations when a case may have both alimony and child support.  However, the case also contained numerous rulings that should make practitioners review their Separation Agreement templates and change some of the ways in which they may have previously drafted certain sections.

In this post we'll share actual language from the Gray Jay Endeavors, LLC form Separation Agreement template which addresses each of the issues raised by the Cavanagh decision.  If you are a professional interested in purchasing the full Separation Agreement template, check out Gray Jay's forms subscription which includes editable Massachusetts court forms and financial statements as well.  

Recommendations for Drafting Separation Agreements:

• Always indicate in your drafted Agreements that the agreement was drafted by both sides and there should be no presumption in the drafting against either party (to avoid the presumption against your client).

Sample Language:

AMBIGUITIES: Because this Agreement has been drafted with input from both parties, any ambiguities that may arise will not be construed against either party as the “drafter” of this Agreement.

• Delete emancipation definitions that differ at all from the statutory definition, or try to further qualify the definition. Judges are and should be rejecting these additional provisions given the Cavanagh ruling.

Sample Language:

DEFINITION OF EMANCIPATION: Emancipation is defined by the application of the pertinent provisions of M.G.L. Chapter 208, Section 28, which provides that the “court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three, if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.”

• Note that any deviations from child support are always reviewable by the court in a modification, even if in consideration for other provisions.

Sample Language:

For cases where the parties followed the child support guidelines:

MODIFICATION OF AMOUNT: _________ and _________ acknowledge that child support may be modified if there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines.  If either parent requests a modification of support, and they reach agreement, such modifications and agreements will be reduced to a writing in advance of implementation and will be signed by both parents and submitted to the court with a Joint Petition for Modification, at shared cost. If the parents are unable to agree, they will comply with the Dispute Resolution provisions in this Agreement. The parents acknowledge that parents may bargain to provide support to their children in more circumstances than provided for by statute, but they cannot erode a child's statutory right to support by agreement and the court retains jurisdiction until emancipation of the children to modify support if there is an inconsistency with the child support guidelines.

For cases where the parties deviated from the child support guidelines:

MODIFICATION OF AMOUNT: _________ and _________ acknowledge that child support is already inconsistent with the guidelines due to the deviation rationale provided above. The parents agree that child support may be modified when there is a material and substantial change in circumstances, or if the facts that gave rise to the deviation no longer exist.  If either parent requests a modification of support, and they reach agreement, such modifications and agreements will be reduced to a writing in advance of implementation and will be signed by both parents and submitted to the court with a Joint Petition for Modification, at shared cost. If the parents are unable to agree, they will comply with the Dispute Resolution provisions in this Agreement. The parents acknowledge that parents may bargain to provide support to their children in more circumstances than provided for by statute, but they cannot erode a child's statutory right to support by agreement and the court retains jurisdiction until emancipation of the children to modify support if there is an inconsistency with the child support guidelines.

• When drafting alimony orders that are modifiable indicate clearly what the current order is, even if it's $0, and avoid using the phrase "reserve the issue" when referring to future alimony being modifiable to avoid the court ruling that it wasn't resolved.  

Sample language: 

NO PRESENT SPOUSAL SUPPORT: Taking into consideration the provisions in this Agreement related to [List Factors considered], neither party will pay present spousal support to the other. 

MODIFICATION OF SPOUSAL SUPPORT: Until [Enter agreed upon end date, if any], the death of either party, or the remarriage of the potential recipient spouse, alimony will be considered merged into the Judgment and modifiable upon a showing of a material change in circumstances pursuant to the application of M.G.L. c. 208 §49e. If either party requests a modification of support, and they reach agreement, such modifications and agreements will be reduced to a writing in advance of implementation and will be signed by both parties and submitted to the court with a Joint Petition for Modification, at shared cost. If _________ and _________ are unable to agree, they will comply with the Dispute Resolution provisions in this Agreement.

• Review your agreements for any ambiguities created by "boilerplate language".  Consider whether dispute resolution provisions override any requirements that changes be "agreed upon"  and define it clearly when a client has intended veto power (or veto power of the purse).  If you are not careful with these drafting inconsistencies, you risk that "agreed upon" will be read as "agreed upon through the dispute resolution provisions outlined herein and agreement not to be unreasonably withheld."  

Instead of using the phrase "agreed upon" consider which option the clients actually intend:

Sample language: 

Option 1 (agreement not necessary unless asking for contribution or using the other parent's time): The parents will discuss enrollment in activities in advance, and if one parent doesn’t agree to the enrollment in said activities prior to the enrollment, then the parent who wishes to enroll the child may pay for the activity in full and enroll the child provided it does not interfere with the other parent’s parenting time and there are no safety objections.

OR 

Option 2 (agreement to be reached though the same dispute resolution process outlined for any disagreements - this is how the court read the words "agreed upon" in Cavanagh): The parents will discuss enrollment in activities in advance, and if one parent doesn’t agree to the enrollment in said activities prior to the enrollment, then the parent’s will comply with the Dispute Resolution provisions in this Agreement. 

OR  

Option 3 (a clear veto power if no agreement - this is how the father in Cavanagh intended the words "agreed upon" to be enforced): The parents will discuss enrollment in activities in advance, and if one parent doesn’t agree to the enrollment in said activities prior to the enrollment, then the child will not be enrolled in that activity.

[Potential additional language when the objections are to cost:] For any expense listed in the paragraph above with a cost of more than $[Enter agreed upon cap of expenses], the parents will memorialize their agreement in writing (email or text is sufficient) prior to making a purchase or enrolling a child in an activity. If the parents are unable to agree and an activity would interfere with the other parent’s parenting time or the cost exceeds $[Enter agreed upon cap of expenses], they will comply with the Dispute Resolution provisions in this Agreement.

We hope these examples are helpful to you.  As a reminder, when drafting an agreement in any case the unique circumstances of the case should control and any sample language should only be considered a starting point for experienced practitioners rather than language that is set in stone.  

Gray Jay Endeavors, LLC provides Separation Agreement Templates and Massachusetts divorce forms as a resource for professionals and divorcing couples.  If you are a professional who wants to learn more about our forms subscriptions visit GrayJayEndeavors.com.  

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