Winter 2015 Newsletter: Practice Tips for Negotiating and Drafting Stipulations

By Jordana Kershner

Drafting stipulations to become temporary orders can be a useful and effective way to handle issues that arise on an interim basis during the pendency of a divorce or modification. Even if a particular stipulation seems quite simple and limited, there are still numerous things to take into consideration. This article provides practice tips to help you avoid common pitfalls so that whether a stipulation is the result of lengthy negotiations or scribbled in the hallway outside of a courtroom, unintended consequences do not arise later that are problematic for your client. Some of these practice tips will be more applicable to stipulations drafted in advance and others to those drafted outside the courtroom; some tips are also applicable for drafting separation agreements. It is, of course, not an exhaustive list.


General Considerations
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An important first step when preparing a stipulation is establishing its purpose(s) and scope with both your client and opposing counsel. Negotiation and practicality require some flexibility, but be wary of not seeing the forest for the trees. If new issues are continually being added, resolution of time-sensitive items may be delayed as you become bogged down in negotiations that could stretch on for weeks. Problems arise when attempts are made to resolve issues that go to the heart of the case and are more appropriately left to be addressed as part of the ultimate resolution of the matter.

Include specific time periods for compliance; for example, a date by which a payment must be made. This not only avoids problems of interpretation and increases the likelihood of compliance, but if a contempt action becomes necessary, the contempt will be able to be clearly established.

If only one party is likely to have or receive information, for instance, receipt of a bonus or tax refund, be sure to require notice by that party, whether “promptly” or, preferably, within a specified period of time (see above.) You would also want to require him or her to provide supporting documentation at the same time as the notice.

If a term requires mutual agreement, such as changes to a parenting plan, be sure to include that such agreement needs to be in writing, although in this technological age it is common to provide expressly that such agreement may be by email.

Consider whether it would be appropriate or desirable to require that notice, a payment, an exchange of documents or information, etc. be conducted through counsel rather than directly between the parties. This could be for any number of reasons, including if the parties have a hostile relationship or it is important to have reliable documentation of when the notice/ payment/ exchange took place.

Consider whether you want to state that a term is without prejudice to ultimate disposition of the issue, such as one party’s use of real property or a vehicle during the pendency of a divorce. Similarly, whether a party is expressly reserving the right to have a provision, for example a specific weekly or monthly amount for temporary child support or temporary spousal support, renegotiated or brought before the court pending receipt of outstanding discovery.


Pitfalls to Avoid
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If you were not the original drafter of the stipulation, or even if you were, review the language carefully to be sure that it does not include any representations with which you would not want to be stuck. Examples include that a particular debt was incurred by one party (or, depending on the circumstances, that a particular debt is joint), and that some piece of property is one party’s. These representations are not always overt and obvious. They can be as subtle as “his car” or “their credit card debt” within the context of a term wholly unrelated to ownership of the car/debt.

If the stipulation includes that a party is permitted to make a particular expenditure, for instance to lease or purchase a new car, and you represent the other party, you would likely want to specify that that expenditure will be considered an advance distribution against his or her portion of the marital estate (and identify the amount that is being deemed an advance.) But if your client is receiving funds for legal fees and opposing counsel wants to stipulate that those funds are to be an advance distribution against your client’s share of the marital estate, it is really appropriate to provide that the other person’s fees in the same amount will also be considered an advance distribution against that party’s share of the marital estate.

While it is customary to include the clause “all until further order of the Court,” it is important and expedient to build in some flexibility to agree otherwise. A common way to do this is to add “except as the parties may otherwise agree in writing.”

Many courts require a separate “Joint Motion to Enter Stipulation as a Temporary Order of the Court,” especially if you are asking that the stipulation be handled administratively rather than appearing before the Court. It can be prepared quickly and it is more efficient to assume it will be required than to not do so and have entry of the order delayed as a result.


Provisions Regarding Payments
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If the stipulation provides that your client is making mortgage payments, although this could be applicable to other kinds of payments, it would be advantageous for your client if those payments were credited to him or her when the equity in that asset is ultimately divided. Of course, there could be reasons why this would not be appropriate or reasonable, but you do not want to overlook it if it is.

If the stipulation provides that one party will be responsible for making payments to the other party, whether as child support or temporary spousal support, or for a marital expense such as the mortgage, consider whether you want to build in an automatic review or end date after a certain period of time. When entering into a stipulation, it can be difficult to predict how long the temporary orders will be in effect prior to the final judgment and your client may not want to be required to continue carrying certain costs or making certain payments on an open-ended basis. Tie the review or end-date to a particular date rather than an event. If you tie it to an event, such as the Pre-Trial Conference, and that event is subsequently continued for several months, if your client is the payor, he or she may be displeased.

Be specific about what expenses are covered if the stipulation concerns payment of expenses for the marital home (or other real property, such as a rental property or summer home.) Common ones include the mortgage, real estate taxes, insurance, utilities, and maintenance. Specificity is particularly important on the issue of maintenance. Saying “routine” is insufficient and could leave the door open to a great deal of dispute if you do not also include a cap figure above which prior agreement would be required, likely with an exception to that requirement in the event of an emergency.


Considerations Regarding Appointment of a Third Party Professional
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Even if you are attempting to select a third party professional (e.g., discovery master, GAL, parenting coordinator, or accountant) while you are at court, try to call the person before finalizing the stipulation to make sure he or she is willing to serve. If you are not able to reach him or her in advance, provide a mechanism and timing for selecting an alternate and notifying the court of same.

When speaking to the candidate, provide the following information so that you can rule out conflicts: names of the parties, names of all counsel involved, including known counsel representing third party witnesses, names of any prior counsel, names of any other third party professionals that have been engaged or consulted, and the name of the judge.

If your client will be responsible for any portion of that professional’s fees or costs, ask about them in advance and inform your client. This information may also influence your selection.

Specify how that professional’s fees and costs will be paid. Consider providing that he/she has the authority to reallocate his/her fees in any percentage he/she deems appropriate, including 100% to one party, if he/she feels that one party has not acted in good faith, or unreasonably withheld, delayed, or conditioned his/her agreement to any matter. This kind of provision can be adjusted to suit the dynamics of the parties involved and the issues being addressed by the professional.

Give careful consideration about whether and to what extent you want to define the scope of the professional’s role. This can be a difficult judgment call and also requires anticipation of issues that have not yet but may arise in the future. In the case of a parenting coordinator, you may want to provide an expiration for the appointment, possibly to be extended by mutual agreement. The expiration could be on a date certain or upon reaching a specified fee threshold, or the earlier or later of those two options.

Many courts require a separate “Joint Motion for Appointment of [Role]”. Depending on the circumstances, an assented-to motion may be more appropriate than a joint one. Regardless, as with motions to enter the stipulation as a temporary order, the best practice is to assume some type of motion will be required in order for the court to make the appointment.

 

Final Considerations Before Submitting the Stipulation:

It can never hurt to include some simple disclaimer language, such as that “each party has read and understands this agreement and is signing it freely and voluntarily.” This is an especially good practice if the other party is pro se.

Make sure to give consideration to whether the stipulation, or a particular term within it, should survive incorporation into a final judgment. Confidentiality agreements are something that you would usually want to expressly survive incorporation so that they continue to be enforceable even after a divorce is finalized.

If there are prior temporary orders already in place, be sure to state if any aspects of those prior orders are to be modified. Even if prior orders are not being modified, it is good practice to state that all prior orders shall remain in full force and effect.

Depending on the subject matter of the stipulation, it may be appropriate to specifically reference Supplemental Probate and Family Court Rule 411 and whether or not the stipulation is intended to modify it in any way.

Be cognizant of other upcoming deadlines. You may want to address them even if they are unrelated to the subject matter of the stipulation. Do you want to agree to extend a discovery deadline or that depositions are being reserved and will not be taken prior to the Pre-Trial Conference? If you have not yet had the Case Management Conference (or the court does not conduct Case Management Conferences), it would be expedient to include in the stipulation the simple items typically addressed in a Case Management Stipulation, such as a discovery deadline and date for the Pre-Trial Conference.

After the Stipulation has Been Submitted:

Make sure you receive a copy of the order issued by the court entering the stipulation as a temporary order. The court can sometimes forget to send this out or there may be a delay of a few weeks and you will want to follow up if any next steps are dependent upon the official approval of the stipulation. If the stipulation was written at court, make a copy of it before submitting it to the court; you do not want to be left without a copy while waiting to receive it in the mail.

Hopefully you will get to a point in the case where you are drafting a final agreement. When doing so, it is always a good idea to take out and review any stipulations. Not only could it save you time by avoiding re-drafting language for a provision that has already been drafted and agreed upon, but if a case has gone on for a long time, it is important to remind yourself about any agreements that may have already been reached, such as that a certain expenditure would be considered an advance distribution, or vacation and holiday parenting time.

Jordana Kershner graduated from Tulane University in 2005 cum laude and, after working as a litigation paralegal at the Washington DC firm now known as Cohen, Milstein, Sellers & Toll, PLLC, went on to receive her J.D. from Boston University School of Law cum laude in 2011.  While at Boston University, Ms. Kershner was the Editor-in-Chief of the American Journal of Law & Medicine, and interned at the Special Litigation Department of the Connecticut Office of the Attorney General as well as for the Honorable Dominic J. Squarito, District Court Judge for the District of Connecticut.  After a fellowship with Shelter Legal Services, Ms. Kershner joined Baskin & Associates, LLC in February 2012, where she has been representing clients in all areas of family law. 

Ms. Kershner is a member of the Newsletter Committee for the Family Law Section of the Boston Bar Association and volunteer for the Probate and Family Court Lawyer for the Day program.  She is admitted to the Massachusetts Bar and a member of the Massachusetts Bar Association, Women’s Bar Association, and the Boston Bar Association.