Massachusetts divorce lawyer Josey Lyne Payne discusses the dangerous fallout when clients fail to carefully read court orders and agreements.
“Did you read the agreement you signed?” Every family law attorney has asked the question a hundred times. 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 the parties must follow, to how child support will be paid, to a dozen other small details that are unique to the case: who picks the children up from soccer practice on Wednesdays? What is the parenting schedule for Thanksgiving? Who is paying the car lease for the next three months? It’s all there in the agreement; the 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. Reading an agreement can trigger feelings of anxiety, depression 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 of 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 not always. 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 to court for one reason or another.
Hand-written stipulations are a function of necessity and compromise at the temporary order 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 mere weeks (or days) after a complaint is filed, after one party files 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 that 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 write a stipulation, they avoid a contested hearing before the judge. Instead, the hand-written stipulation is submitted to the Probate and Family Court judge, who incorporates the agreement into an Order or Judgment. And just like that, an agreement negotiated between the parties and their attorneys has transformed into a court order, backed by the full power and authority of the Probate and Family Court judge.
The hearing to enter a stipulation as an order is usually short. Unlike the judge’s colloquy that precedes the entry of a full-blow 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? Will you comply with is terms? After both parties say, “yes”, the hearing ends and the terms of the stipulation become an 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 an 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).
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: Phew, I’m done. Now I can stop thinking about my 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 literally an Order!
Once the parties leave the building, 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 party 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 to answer a Complaint for Contempt.
For the sake of clarity, let’s review an example of a Temporary Order that was reached by agreement of the parties and incorporated into an Order of the Court: Divorce 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 be 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, 2015.
- The parties agree to joint legal custody and primary physical custody with the Mother.
- Father shall have parenting time with the children Wednesday afternoons starting at 3:00 pm and ending at 8:00 pm and every other weekend starting Friday at 3:00 pm and ending Sunday at 8:00 pm.
- Beginning January 1, 2016, Father shall pay the sum of $400.00 per week as child support to Mother directly by check or money order every Friday.
- Beginning January 1, 2016, Father shall pay the sum of $200.00 per week as temporary alimony to the Mother directly by check or money order every Friday.
- Father shall deliver keys to the safe deposit box held in the parties’ names at Mutual Bank to Mother no later than January 1, 2016.
- Father shall name Mother as beneficiary of his life insurance policy in the amount of $100,000.00 no later than January 1, 2016.
- Mother shall name Father as beneficiary of her life insurance policy in the amount of $100,000.00 no later than January 1, 2016.
- Mother shall turn over all jewelry inherited from Father’s grandmother no later than January 1, 2016.
The agreement 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 about 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 MUST deliver the keys to the safe deposit box to Jane by January 1.
John and Jane, both, MUST update their life insurance beneficiary designations by January 1.
Jane MUST turn over all jewelry inherited from John’s grandmother by January 1.
If either 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 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. The parties must comply with the terms themselves.
Parties best protect themselves by taking the following steps as soon as possible after an Order is issued:
- 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 explain it to you);
- Make a note on your calendar of 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: Josey Lyne Payne is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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