Massachusetts divorce lawyer Carmela Miraglia discusses the dangerous fallout when clients fail to carefully read court orders and agreements.
There is one question every Judge asks both parties before accepting an agreement as part of a judgment, “Did you read the agreement you signed?” That is also the question every family law attorney has asked a hundred times when reviewing an Order with a potential client. The scenario is often the same: after a long and exhausting negotiation, two parties finally enter a written agreement in their divorce or family law case. The agreement provides for everything from the parenting schedule, to how child support will be paid, as well as a dozen other smaller details that are unique to the case such as, who picks the children up from soccer practice on Wednesdays, or who pays the car lease for the next three months. It’s all in the agreement; the same agreement the client now says he or she has not read since leaving court.
As attorneys, we understand why clients don’t read orders and agreements after leaving court. Litigation is stressful and exhausting. Negotiations often include hard compromises that disappoint or frustrate clients. Re-reading an agreement can trigger feelings of anxiety or panic. And yet, it must be done.
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When parties to a divorce or other family law case reach an agreement, their attorneys prepare a written stipulation capturing all the elements of the agreement. Attorneys for divorce litigants can often prepare stipulations by exchanging electronic versions of a draft agreement from the comfort of their respective offices, but that is not always the final agreement, and the end product may be filled with hand-written additions or deletions. Family law is uniquely different from other forms of law in that stipulations often consist of hand-written documents that are prepared by the attorneys in court, on the same day the parties are called for one reason or another.
Hand-written stipulations are a function of necessity and compromise at the temporary orders stage of family law cases. Family law cases can move extremely quickly, and major decisions about child custody and financial issues are often put before a judge weeks (or days) after a complaint is filed, with one party filing a motion for temporary orders. There is often no time for attorneys to exchange type-written proposals in advance of a motion hearing. The result is hand-written stipulations that are negotiated under pressure, at the court house, where parties decide to compromise. The alternative to compromise, the parties learn from their attorneys, is to take their chances with an overburdened judge who will hear 50 motions that day, and who will decide hugely important issues for the clients after just 10 minutes or less of argument from the attorneys. (Note, it is not the judge’s fault that Massachusetts chooses not to adequately fund or staff probate and family courts, which have ten times the case-load of better funded Superior Courts.)
If the parties can reach an agreement and draft a stipulation, they avoid a contested hearing before the judge. The hand-written stipulation is submitted to the Probate and Family Court judge, who incorporates the agreement into an Order or Judgment. The agreement, negotiated between the parties and their attorneys in the hallway of the courthouse, has transformed into a court order, backed by the full power and authority of the Probate and Family Court judge.
The hearing to enter the stipulation as an order is usually short. Unlike the judge’s colloquy that precedes the entry of a full Separation Agreement as a Judgment of Divorce, a judge at temporary order hearings will simply ask the parties: “Did you read the agreement? Do you understand it? And will you comply with is terms?”
After both parties say “yes”, the hearing ends and the terms of the stipulation become a Temporary Order.
A court order represents law that is specific to a particular case and set of parties. What the order says is the law, at least as far as the parties go. The fact that the parties negotiated the terms of the agreement themselves does not negate the enforceability of an order once the agreement has been incorporated. Indeed, many Probate and Family Court judges believe that parties who voluntarily sign a stipulation have an especially high burden to comply with its terms – terms chosen by the very parties themselves. Why agree to the terms if you have no intention to abide by them?
After the short hearing to enter the stipulated agreement as an order, the parties typically leave the courthouse with a photocopy of the stipulation that was reached. An official copy from the court will soon follow in the mail. After a long negotiation, parties who leave the courthouse with an order are often exhausted and perhaps even traumatized by the stress of the process. The client may think: What a relief that’s done! Now I can stop thinking about the case, at least for a little while. Unfortunately, things are rarely that simple, though.
The Order is not just a piece of paper that proves the parties went to court; nor is it a general guideline for how the parties will deal with financial and child-related issues. The Order is a roadmap that dictates exactly how the parties must conduct themselves moving forward. A court Order is tantamount to a mandatory “to do” list. A party has the duty to read the Order, understand it, and abide by it. A court order is just that, an Order. It must be followed, to the letter, at all times.
Once the parties leave the courthouse, they cannot simply check-out. The parties have quite literally been ordered to do things. For a party to ensure that they are complying with the Order, the first thing “to do” is review the Order – really read it, and understand it. The parties must then start making note of any tasks and/or deadlines that are required to be met. Parties who fail to read their orders often find themselves before the Court answering a Complaint for Contempt.
For the sake of clarity, let’s review a fictional example of a Temporary Order that was reached by agreement of the parties and incorporated into an Order of the Court in the hypothetical divorces of Jane Doe v. John Doe.
Jane and John were married in 2005 and have 2 children together, Jason (12) and Julie (10). John works as a veterinarian and Jane is a stay-at-home mother and homemaker. Jane filed for Divorce on the grounds of Irretrievable Breakdown.
After filing the Complaint for Divorce and serving the complaint and summons on John, Jane’s attorney files a Motion for Temporary Orders, seeking orders that would stay in effect during the pendency of the divorce. Jane requests physical custody of the children; child support; and temporary alimony. She also requests the keys to a safe deposit box at Mutual Bank, and that John name her as beneficiary on his life insurance policy.
Jane and John, appear in court along with their attorneys on the day of the hearing and negotiate an agreement with the assistance of the probate and family court probation department. Their agreement reads as follows:
Jane Doe, Plaintiff
John Doe, Defendant
It is hereby agreed by the parties that the following stipulation shall be made an Order of this Court pursuant to the Complaint for Divorce filed December 29, 2016.
- The parties agree to share legal custody of the parties’ minor children, Jason and Julie, with Mother to have primary physical custody of the children.
- Father shall have parenting time with the children every Wednesday afternoon starting at 3:00 pm and ending at 8:00 pm, and alternating weekends starting Friday at 3:00 pm and ending Sunday at 8:00 pm.
- Beginning the Friday after this stipulation is signed, and continuing each and every Friday thereafter, Father shall pay the sum of $400.00 per week as child support directly to Mother by check or money order.
- Beginning the Friday after this stipulation is signed, and continuing each and every Friday thereafter, Father shall pay the sum of $200.00 per week as temporary alimony directly to the Mother by check or money.
- Father shall deliver keys to the safe deposit box held in the parties’ names at Mutual Bank to Mother no later than January 1, 2017.
- Father shall name Mother as beneficiary of his life insurance policy in the amount of $100,000.00 no later than January 1, 2017.
- Mother shall name Father as beneficiary of her life insurance policy in the amount of $100,000.00 no later than January 1, 2017.
- Mother shall turn over all jewelry inherited from Father’s grandmother no later than January 1, 2017.
The agreement above took hours to negotiate and included provisions that were not requested in the initial Motion filed by Jane.
By the time the judge enters the agreement as an Order, Jane and John are exhausted and would like to forget the whole day. Unfortunately, this is not an option. There are things that each must do, per the Order of the Court.
- John MUST begin making support payments to Jane every Friday.
- John and Jane, both, MUST update their life insurance beneficiary designations by January 1st.
- Jane MUST turn over all jewelry inherited from John’s grandmother by January 1st.
If either of the parties misses compliance with any of these provisions, he or she could face a Complaint for Contempt. This includes the possibility of having to also pay for the other party’s legal fees and costs. Even if they did not comply with the Order due to an oversight (i.e., accidentally failed to comply), they have still breached an Order and could face legal consequences. Here’s an example:
Jane leaves the courthouse remembering only the provisions in her original Motion for Temporary Orders (what she asked for). The Motion did not include her naming John as a beneficiary on her life insurance policy and did not require her to turn over jewelry to John. Jane forgets to give John his grandmother’s jewelry before January 1, and does not designate John as beneficiary to $100,000.00 of her life insurance policy.
On January 2, John asks Jane for proof of the beneficiary designation and his grandmother’s jewelry, which was due to him the day before. Jane has forgotten. She does not give John the jewelry, nor did she make him the beneficiary of her life insurance policy.
John files a Complaint for Contempt. At the Contempt hearing, Jane is found in Contempt and ordered to comply with the Order AND to pay John’s legal fees and costs.
It is important for parties to recognize that the obligation to comply with a Court Order is their responsibility alone. The opposing party has no obligation to remind them of their duties. The Order also doesn’t require a party’s lawyer to complete the required task for their client or send them a reminder notice of relevant dates. The parties must comply with the terms themselves.
Parties should best protect themselves by taking the following steps as soon as possible after an Order is issued:
- Re-read your Order word-for-word;
- Make sure you understand what you are required to do (if you don’t understand, ask your attorney to review it with you and explain it to you);
- Mark your Calendar with the dates you must complete certain tasks by; and
- Do what you are ORDERED to do.
Remember: it is the parties who are bound by the Order, not their attorneys.
About the Author: Carmela M. Miraglia is a Massachusetts family law attorney for Lynch & Owens, with offices in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.
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