Although none of us can see the future (not yet anyway), when drafting a divorce agreement it is absolutely imperative to include as many potential future scenarios that you foresee to occur. Equally, if not more important, is to actually spell out exactly what your intentions and expectations are and provide examples if necessary. More often than not, a client inquires as to why the precise wording matters so much when “everyone really knows what that provision is supposed to mean”. Unfortunately, this could not be further from the truth. While you may have one interpretation of a specific provision, your ex may have another. Even if you both have the same understanding at the time the agreement is signed, if the provision is vague and ambiguous, this allows one party to come later and argue that it really meant something different. This issue typically rears its head down the road when one party is seeking to enforce a provision of their Agreement that is somewhat vague and ambiguous.
In the unpublished (non-precedential) recent case of N.G. v. N.B.G., the Appellate Court reversed and remanded for further proceedings the trial court’s denial to fully address the father’s request for increased custody and parenting time under the terms of their Marital Settlement Agreement. This case may have had a very different result had the parties not been clear about their intent and expectations in their Agreement.
In the parties’ Marital Settlement Agreement, it specifically noted that after one-year under the current parenting time plan, they would revisit the father’s parenting time schedule for a possibility of increasing parenting time. If the parties did not agree to a modification, then either party had the right to seek a de novo review (essentially a fresh look) from the Court of the parenting schedule. As could be predicted, after the one-year period, the parties did not agree to a modification and the father sought additional parenting time from the Court.
The trial court denied the father’s request finding that although their agreement allowed for such application, there was no “big change” in circumstances that would lead her to believe it would be in the children’s best interests to have additional parenting time with the children. The Appellate Court found this to be in error given that the trial court incorrectly focused on the need for a “big change” rather than focusing the children’s best interests. The court also noted that the parties’ expressly bargained for provision of their Marital Settlement Agreement requiring de novo review (i.e. the existing order was not binding and they were supposed to start from scratch) was not utilized by the court in the disposition of the father’s application. The Appellate Court remanded the case to the trial level finding that a plenary hearing (trial) was necessary given the conflicting perceptions of the parties, the passage of time and intervening events. The Court felt that a full hearing would best effectuate the express intent of the parties’ Agreement and the reasonable expectations of both parties.
The take away here is that the intention is that there be a de novo review, you may want to spell out exactly what is supposed to happen at the time of the review.
Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution. Lauren can be reached at (609) 844-3027 or firstname.lastname@example.org.