By Alan Freed
In almost every area of practice, lawyers are called upon to write contracts and other documents that will be scrutinized by other lawyers and judges to try to figure out how to interpret the words appearing on the page, or, to put it more simply, to answer the question, “What the heck were they trying to accomplish when they wrote this?”
Family law attorneys are very well aware of this issue, which is why we put so much effort into the marital separation agreements, parenting plans, and other legal documents that our clients will rely upon after they leave our offices.
I have spent nearly 40 years dealing with families going through divorce, and those decades of practice have taught me that if we don’t do our jobs carefully and thoroughly at the front end, there’s a decent chance we’ll hear about it down the road.
A couple once came to me to mediate a problem with their divorce parenting plan. They couldn’t agree on how the children’s spring break was to be allotted to the parent scheduled to have the kids in their care.
The first half hour of the mediation was spent in argument over who was paying for the mediation. Once they got past that issue, we faced the real problem: the parenting plan did not define when spring break started and when it ended.
Dad said the break began when school was dismissed on Friday. Mom showed Dad a copy of the school calendar, which clearly showed that spring break started on Monday. The parenting plan, which simply said the parent scheduled to have the break was entitled to seven days, did not help resolve the dispute, which is how they found themselves paying a professional to help them solve the problem.
That experience, and countless others before and since, have helped me understand that, although we should always hope for the best, we as lawyers must also anticipate something could go wrong, and write our documents with that in mind.
If Mom’s birthday might fall on Father’s Day, we should be talking about which day takes precedence when they conflict. If each parent is entitled to two weeks of summer vacation, do they have to be two seven day periods or can they be broken into three or four smaller ones? Et cetera.
Even cooperative parents need to anticipate that the introduction of a new stepparent or a change in job schedule might make it more difficult to work together than they were able to do at the time they reached agreement on the parenting schedule.
Every parenting plan I write now clearly defines when spring break begins and ends. It also plainly states how the cost of mediation will be divided. I take that same approach to every issue I’m addressing in every document: What could go wrong, and how can we avoid the problem? We may not catch every potential problem, but we always try to anticipate them.