YourABA October 2011 Masthead

Settlement agreements: Eliminating hassle associated with boilerplate language

When it comes to marital settlement agreements, there is often nothing standard about the clients, the petitions, the settlements or even the trials that occur. There is, however, a standard procedure that can be used to eliminate mistakes and save unnecessary time and effort. As demonstrated in the recent ABA CLE session, “Boilerplate Language in Settlement Agreements: Making a List and Checking it Twice - It's Not Just for Santa Clause,” checklists are often a very simple way to take your boilerplate language and customize it to specific cases.

In general, when dealing with boilerplate provisions or language, Mann advises that a lawyer should try to “customize [it] to a client’s particular needs or situation.”

Panelists Kathleen Hogan—a partner in the Denver law firm of McGuane and Hogan LLP—and Scott Mann—a partner of Evans & Mullinix, P.A., in Shawnee, Kan.—began the program by explaining that, before you even begin drafting a petition for a client, you need to find out background information about the client as well as potential issues that may come up during the settlement. Hogan provided several examples, which included prior divorces; criminal history; the status of the children, if there are any; as well as if potential clients will be able to actually pay your fees.

The panelists also stressed the importance of reviewing checklists—ranging from those related to retirement; real estate; child custody and support; as well as miscellaneous provisions regarding debts and liabilities; taxes; military; restoration of a former name; life insurance; and continuation of health insurance. These can be used in the initial interview if you wish, but Hogan emphasized that a lawyer should not overwhelm his or her client with everything on the list at once; going over the highlights of what is important on each list is a good place to start.

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The following checklists may be two that require the greatest discussion with one’s clients:

Assets: Tangible and Intangible. Most clients are not going to come into the initial interview with a spreadsheet containing all of their assets with estimated worth. That is where the checklists will come in handy, noted Hogan and Mann. By going over these lists with your client during the first interview, the client can then make a note of what records they need to collect for next time, says Hogan. Mann offered several assets that his past clients have neglected to mention, such as timeshares, burial plots, water or other mineral rights, patented materials and frequent flier miles.

Custody Issues. This is likely to be the most delicate of the issues you will have to go over with your client, and the utmost discretion should be used in trying to anticipate the needs of your client. Hogan advised that, especially when divvying up the child’s time off to create a visitation schedule, to “Know your client before you hand them a list and ask them, ‘What matters to you?’” Both panelists reiterated that the earlier and more often you go over these issues with your client, the less likely it is that you will be dealing with negative consequences down the line.

In general, when dealing with boilerplate provisions or language, Mann advises that a lawyer should try to “customize [it] to a client’s particular needs or situation.” By being more thorough before a settlement agreement is made or even before you go to trial, it will save a lot of your time later that you may have to otherwise spend backtracking.

Jamie Wright, Walker & Associates, LLC, moderated the Section of Family Law, Young Lawyers Division and Center for CLE-sponsored program.

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