WHEN WORDS GO TO COURT

Author's Note: This article is adapted from materials prepared for the Fall 2010 Family Mediation Institute of the Massachusetts Council on Family Mediation.

When mediators and family lawyers reduce their clients' understandings to writing, the words they choose may wind up being closely scrutinized in court. This is one of many reasons why their words matter so much. Their words will need to hold up under a judge's scrutiny at the divorce hearing -- and, beyond that, may become critical in court proceedings after the initial hearing.

The following three post-divorce cases illustrate what can happen when words go to court. Each of these cases turns, at least in part, on the language of the parties' Separation Agreement.

Bell v. Bell, 393 Mass. 20 (1984)
      -- cohabitation

Foster v. Hurley, 444 Mass. 157 (2005)
      -- life insurance

Johnson V. Johnson, 2010 Mass. App. Unpub. LEXIS 582 (June 2, 2010)
      -- property division; QDRO language

Another post-divorce case on point is Fawzi v. Elaskalani, 2010 Mass. App. Unpub. LEXIS 602 (June 4, 2010). The opinion in Fawzi is interesting for its discussion of ambiguity and for its implications regarding so-called "nondisparagement provisions."

Taken together, these four cases demonstrate that imprecise language is like the proverbial loose cannon. It is difficult to know where the damage will be inflicted. Fawzi and Bell demonstrate, ironically, that imprecise language is not necessarily unenforceable. A court may enforce even an imprecise provision, to the pleasure of one party and the dissatisfaction of the other. Foster and Johnson demonstrate that provisions which are imprecise or in some way incomplete may lead the Court to fill in the blanks in a way that one party finds unfair (Johnson) or may lead the Court to a conclusion that the Court would have preferred to avoid (Foster). The subject matter of the Foster case is life insurance obligations incident to divorce, and the opinion of the Court is in some ways a blueprint for the drafting of life insurance provisions in future Separation Agreements. The Court seems to be saying to all mediators and family lawyers, read this, please, before you sit down to write. When words go to court, they matter!

The above article is provided for general informational purposes. This article is based on Massachusetts law only. Furthermore, it is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal

Marion Lee Wasserman is a family and divorce lawyer with an office in Newton, Massachusetts. Her services include mediation and collaborative law in addition to traditional representation. She is a former Vice President of the Massachusetts Council on Family Mediation and is currently on the MCFM Board of Directors. She is sole proprietor of Reach Accord Law and Mediation Services and a member of the Massachusetts Collaborative Law Council. Marion emphasizes dispute resolution, not dispute escalation.

She can be contacted by phone at (781)449-4815 or or Visit Web Site

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