What’s in your boilerplate?

Posted Sunday, March 6th, 2011 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Early in any family law attorney’s practice, that attorney will begin developing an agreement go-by that contains language common to all agreements that attorney drafts.   That go-by will also contain provisions that the attorney routinely uses in agreements.  For example, in South Carolina, a common item in custody agreements that is in most attorneys’ go-by is the language:

Neither party shall expose the minor children to members of the opposite sex, unrelated by blood or marriage, overnight.

The goal of this language is to prevent children from being exposed to mommy’s or daddy’s boyfriend or girlfriend du jour in a situation in which the child is led to believe that “shacking up” is acceptable sexual behavior.  However there are myriad problems with this well meaning language.  For example, what does “overnight” mean?  If mom’s boyfriend arrives at 12:01 a.m. and brings the kids to school the following morning, has mom violated the restraining order?   After all, boyfriend wasn’t there at midnight so he wasn’t there overnight.

Some agreements now remove or define overnight to particular hours, often 11:00 p.m. to 7:00 a.m.  However this doesn’t resolve all the problems this restraining order imposes.  For example if a father’s teenage daughter has a female friend do a sleepover, that would be a violation of  either version of this restraining order.   The situation in which a family member visits and brings a friend who is the opposite sex of the parent is also a violation of the restraining order.  Or consider the situation in which a parent takes the children and romantic companion to a family reunion in which the parent and romantic companion are chaperoned and have separate sleeping quarters.  This would be a violation of the restraining order, though having such opposite sex visitors was considered perfectly proper in much 18th and 19th century British literature.

By adding a Cinderella provision to this restraining order, a parent is now prohibited from taking a teenage child and romantic companion on an outing that keeps them out past the imposed time limit, such as a late night movie, concert or performance.  How is that helpful?  In contrast, a parent could change sexual orientation and their same-sex romantic companion is free to move in without it violating the restraining order.  I prefer to simplify the language of the above restraining order to:

Neither party shall expose the minor children to romantic companions in circumstances that are illegal or immoral.

While this language solves some problems, it creates others.  How does one prove a “companion” is “romantic?” What circumstances render such exposure “immoral?”  There is no perfect way to devise this restraint.

The past few weeks I have obtained court approval of two agreements in which the boilerplate came from the same attorney’s go-by.  I had a hard time explaining the necessity, or even the meaning, of some of the provisions.  For example, this attorney’s agreement go-by included the language, “Both parents will encourage the children to love and respect the other parent.”  There was another provision of the agreement addressing the same concern, “Neither parent will malign the other, or allow others to malign the other, in the presence or hearing range of the minor children.”

Given the provision against maligning the other, how is a provision requiring the encouragement of love and respect helpful?  I didn’t argue the problems of this language with the other attorney–it wouldn’t have helped–but while this language might make the parties feel good, what does it add to the agreement?

“One may not be convicted of contempt for violating a court order which fails to tell him in definite terms what he must do and the language of the commands must be clear and certain rather than implied.” Burnell v. Burnell, 359 S.C. 361, 597 S.E.2d 24, 26 (Ct.App. 2004).  What does an order telling parents to encourage children to love and respect the other require them to do?  How often does a parent have to “encourage the children to love and respect the other parent?”  Continuously? Every few days?  Once a year?  How would one prove that one parent wasn’t doing this encouraging?  Such boilerplate makes one or both parents feel good but does little to help them understand their mutual obligations.

Another problem is that, over time, attorneys’ agreement go-bys tend to accumulate boilerplate provisions, as attorneys expropriate what they consider to be useful language from other attorneys’ agreements.  The tendency, which can be resisted but rarely overcome, is for such go-bys to inflate as attorneys accumulate experience and their go-bys accumulate additional provisions.   These agreement go-bys gradually expand into unwieldy lengths.

Often this boilerplate attempts to define the manner in which the agreement will be interpreted or set the consequences for a breech of the agreement.  However South Carolina case and statutory law already supplies excellent guidance on these two issues–ironically, it’s one of the few areas of South Carolina family law with well developed and clear case law.  Thus, having boilerplate on these issues substitutes well-understood legal standards for ill-defined and poorly-understood contract language.  How is this helpful?

Every item in the “agreement”[1] part of an agreement should either 1) create a right or obligation that one of the parties could be held in contempt for violating; 2) provide information that makes it easier, or harder, to modify that provision if there is a subsequent change of circumstances.  When I review another attorney’s draft language in an agreement with my client and that language doesn’t fit into one of these two categories, I perceive it as a sign of agreement bloat or sloppy boilerplate.

Take this boilerplate from that same attorney’s agreement:

No waiver of any breach by either party of the terms and conditions of this Agreement shall be binding upon either of the parties unless reduced to writing, subscribed to by both of the parties, and approved by the Family Court and made an Order of the Court.

What this boilerplate actually means is that if the parties decide to switch weekends with the children without having that agreement in writing and approved and made an order of the family court–which requires filing a whole new action; paying a $150.00 filing fee; and scheduling a court hearing to get the agreement approved–either one can later ask that the other can be found in contempt for switching weekends.  Really?

Or this boilerplate:

If any undisclosed marital property, or marital interest in property is discovered subsequent to the execution of this Agreement, such discovery, and determination shall not invalidate this Agreement, but the property or the interest in it shall, at the election of the discovering party, shall (1) be divided equally, in kind of (2) be accounted for by the party in possession who may pay to the discovering party a sum of money equal to one-half of the present value of the property or one-half of the value of the property as would have been payable if discovered in a timely fashion, whichever sum is greater.  In addition, the party who hides or fails to disclose such property shall pay all of the other party’s attorney’s fees, expert fees and other cost incurred to discover and enforce this paragraph.

Nobody wants parties hiding assets from each other but nobody’s financial declaration lists every item of personal property.  If one spouse subsequently discovers that the other party has a Eames chair that wasn’t listed on a financial declaration, do they really want to go back to court and fight over it?  What if a spouse simply didn’t list some $200 item of personal property?  Will they go back to court then?

While this provision might be useful if there was a requirement that the property be of at least some value before the provision is triggered, that would create new things to argue about.  First they would have to agree on this threshold.  What if there are two undisclosed items that separately don’t reach this threshold but together do? What if there’s a dispute about the value of the undisclosed item?  Given how infrequently such provisions are actually employed I prefer to have my agreement without an undisclosed property provision.  These are the types of agreement provisions which make the parties feel like the agreement is protecting them but, in practice, generate more fees for the attorneys than value for the clients.

What about provisions like:

Each party may apply to the Family Court of the State of South Carolina for an Order directing specific performance of any act or duty imposed upon the other under the terms of this Agreement, and for appropriate relief to enforce the terms and conditions hereof.

Is this provision really necessary?  Does the attorney who drafted it believe that absent this provision, the parties could not ask the Family Court to enforce the agreement?  It’s simply more bloat.

Consider this provision:

Except as otherwise stated herein, all of the provisions of this Agreement shall be binding upon the respective heirs, next of kin, executors and administrators of the parties.

Family and probate law already have provisions regarding the enforcement of marital separation agreements when one spouse dies.  Could this agreement’s provisions really bind heirs, next of kin, executors and administrators of the parties in a different manner?  How could the court hold these folks in contempt for a violation of the agreement when they weren’t signatories to the agreement?  It couldn’t.

How would one even enforce this provision of the agreement?

Each party acknowledges that he or she is fully informed as to his or her legal rights and obligations; that each of them has entered into and executed this Agreement after conferring with each of his own respective independent attorneys and other professionals, and that each of them executes this Agreement freely and voluntarily, intending to be bound forever by it and intending that it shall be enforceable by the other party by proceedings in the Family Court of the State of South Carolina.

I had my client execute this agreement, despite the bloat, because the hour was late and there was no reason to argue over such boilerplate.  If the parties later decide they want to spend time and attorneys’ fees arguing over this boilerplate, my client had much greater financial resources to engage in such ridiculous fights.  Still, one half of this agreement was boilerplate and bloat.

As I indicated previously, every provision of the “agreement” section of a family court agreement should meet one of two goals 1) stating the parties’ respective rights and obligations with sufficient clarity that a judge could put them in jail for its violation; 2) set up the standards or factors for a subsequent modification of a provision of the agreement that is subject to modification.  Everything else is bloat and boilerplate that simply provides opportunities for the parties to argue over pointless issues.  Allowing one’s agreement to be overwhelmed with such language is simply sloppy drafting.


[1] My agreements typically have five portions: 1) the caption which would indicate the type of agreement it is, e.g., custody modification agreement, marital separation agreement, child support agreement; 2) a section of “whereas” clauses which the spells out the authority of the parties to enter this agreement and the basis of this being an agreement the family court can approve and make into a court order; 3) the “agreement” section, listing what the parties have agreed to; 4) an acknowledgment section in which the parties acknowledge their understanding of the ramifications of the agreement, their capacity to enter the agreement, and their acceptance of the fairness of the agreement; and 5) a place for the parties to witness or affirm the agreement.

2 thoughts on What’s in your boilerplate?

  1. What do I have to do to add Debbie S. Mollycheck, James W. Tucker Jr., and several other good friends from York County to your blog list?

    Referring to your footnote, any agreement that contains the word “Whereas” is evidence that the writer needs to return to school for basic grammar school English lessons to learn to write simple English.

    1. Tom:

      I know you don’’t like the term “whereas,” but I find it useful. There’s not a non-legalese substitute that’s equally succinct, most folks understand the term, and it’s never a bad idea to keep clients cognizant that this is a document of some consequence that they are executing.

      Sue me.

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