The uses and misuses of ambiguity in family court agreements

Posted Tuesday, May 15th, 2012 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Some of the most contentious family court litigation I have handled involved modification of prior family court agreements in which the agreements were ambiguous to my clients’ detriment.  Few things are more frustrating to a client than having his or her expectations thwarted because the agreement’s language does not comport with the client’s expectations.

There are times that ambiguity in an agreement is necessary.  There are times when it can even be favorable.  But thinking about how ambiguity in an agreement may benefit or harm one’s clients is an important part of family law practice.

Ambiguity may be necessary when the parties cannot reach an agreement on how future modifications might resolve.  Rather than fight over contingencies that may never occur, the parties might instead agree to ambiguous language regarding future modifications.  For example, an agreement might specify that father’s visitation will be modified if mother relocates but remain silent on what visitation father shall then have. Because neither party knows when or where mother might move, or what the father’s relationship with the children will be like at the time of the move, such ambiguity can resolve issues in the present while leaving open the potential for differing resolutions based upon a future contingencies.

Ambiguity can also be useful on provisions the other party requests that one’s own client merely accepts.  Here ambiguity can act as a limiting factor, providing one’s client the ability to argue a narrower interpretation of the ambiguous provision as a means of controlling the other party’s behavior.  However, in drafting such deliberately ambiguous language one must be careful that one truly understands one’s client’s goals.  If the ambiguous provision is something the client also desires–though perhaps not as strongly as the opposing party–that ambiguity can be used to the client’s disadvantage.

Finally, there are sometimes provisions in an agreement that are generous to one party with the expectation that the provision will be modified upon a future contingency.  In drafting such agreements while representing the client who is being generous in the present, it is imperative to have clear and unambiguous language on when the modification will take place and how the modification will be implemented.  Allowing such language to be ambiguous merely allows the opposing party to delay and fight modification as a means of having the overly generous provision continue past the time when one’s client reasonably expected it to end.  Obviously, in representing a party who is benefitting from this temporary generosity, if the opposing party is not diligent enough to object it is useful to have the modification provisions be ambiguous.

For these reasons, contemplating how ambiguity might be necessary, useful, or detrimental to one’s client is an important consideration in negotiating and drafting family court agreements.

One thought on The uses and misuses of ambiguity in family court agreements

  1. MJ Goodwin says:

    I was just thinking about this important aspect of practice today. Thank you for posting a succint tutorial. I will pass it on. Thanks!

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