Dottie and Karl have been married for 22 years. They have one son, David Jr., age 16, who loves both of his parents, and shares many interests with his dad. They also have a daughter, Mary Beth, 10 years old who loves her dad but is closer to her mom and wants to live with her for now. David is a carpenter and makes about $30,000 to $80,000 a year doing odd jobs depending on the market. Donna is

Question

an accountant and makes about $150,000 a year working for six prosperous clients. Over the past year in particular, Dottie and Karl have noticed that they are essentially living separate lives. They each have friends and interests, but they have no friends or interests in common. They like and respect each other and want to part amicably. They figure the quickest and least costly way to do that is to present an agreement to a judge and get a no-fault divorce. They have put together an agreement on their own that is just over one page long.

The agreement is simply stated in plain English and provides that they have fully disclosed their assets and liabilities and that their property and debts have been divided in a way they find mutually agreeable. Karl gets custody of the son and keeps the marital residence; Dottie gets custody of the daughter and will be living in an apartment/office. She will keep her retirement account intact. Under the terms of the agreement, neither party is obligated to pay the other either spousal or child support now or in the future. Neither party has consulted with an attorney. Assume that the above description covers the basics of the agreement. When it is presented to the court, what do you think the court will do? Does the document appear to satisfy the characteristics of an effective agreement? Do any significant provisions appear to be missing?

Answer 1

a) What will the court do? In some jurisdictions, the agreement must follow a prescribed format but in others the parties are free to structure their own agreements. Although length is not critical, the court will note that some topics have not been addressed (such as insurance and taxes) and some have been addressed in an unacceptable manner (the parties cannot waive child support obligations). It may be of some concern that, although not required, no attorneys have been consulted and it is difficult to determine whether the agreement is fair and reasonable.
b) Does the document appear to satisfy the characteristics of an effective agreement? These are outlined on pages 479, 484 to 508 of the text. For starters, the agreement is not sufficiently comprehensive, the terms are not stated with much detail so the parties may not know what is expected of them, and without further detail it is hard to determine whether or not the terms of the agreement are fair. For example, what are the values of the marital home and Dottie's pension?
c) Do any significant provisions appear to be missing? Several terms appear to be absent such as insurance, taxes, visitation, and boilerplate provisions such as a severability provision. It appears that some provisions are intended to survive but the parties' intentions are not all that clear.