Make sure your custody or divorce judgment is clearly-written by the attorneys
In Cook County, Illinois (the Chicago area) the attorneys write almost all of the court orders, and the judges sign or 'enter' them.
Many times, an opposing attorney will present me with a proposed 'judgment' or 'order' that contains what attorneys call 'boilerplate.' Boilerplate is paragraph upon paragraph of language that another attorney has on his or her computer, and that will often be called 'standard' language.
I divide possible order and judgment paragraphs into those that are 'aspirational' and those that are 'enforceable,' and try to eliminate all aspirational language during negotiations. What I mean by aspirational are those paragraphs and sentences that sound good, but that don't provide any teeth for enforcement. For example:"Both parties shall attempt to accommodate the needs of the minor children and be flexible in adjusting the parenting schedule as the need arises."
This kind of language is a disaster, since it can be interpreted in many conflicting ways. Why include words like this? To make someone feel better? Let's look ahead. Let's say one parent wants to take the child to a family reunion on the other parent's time, and they point to this language and insist that it gives them to right to unilaterally alter the schedule. This is a problem -- since the meaning of "shall attempt," "be flexible," "the needs of the minor children," and "as the need arises" are all vague phrases -- easily twisted by either party.
Unclear, poorly-written language in Judgments or Court Orders can cause very-expensive problems later -- bad writing or editing leads to failed or unreasonable expectations, the filing of motions, and the need for court intervention.
On the other hand, clearly-written 'enforceable' language prevents problems and saves money. For example: "CHARLES shall have parenting time from the 2nd and 4th Friday of each month at 6:00 p.m. to the following Sunday at 6:00 p.m. In other words, these weekends."
This language is easy to understand, and difficult to misunderstand. This avoids the awful phrase 'every other weekend,' which could lead to problems when there's a holiday on a weekend and one parent decides there's a need to 'reset' the 'every other' weekend. ("You got last weekend, then you got Christmas the following weekend, and now you want the following weekend, too? That would three weekends in a row! That's not right! We need to reset the every-other-weekend to prevent that!")
Court orders and judgments are usually enforced through the 'contempt-of-court' process, where one party accuses the other of being in 'indirect civil contempt,' and then asked the court for remedy.
There is a case I like to refer to, from our 1st District Appellate Court, that explains the problem in enforcing vague or unclear language. It's the 1998 Steinberg decision, and there the Appellate Court said the following (and I quote.)
If you're involved in a custody or divorce case, and you're presented with a long, detailed proposed judgment or order (or even a 2-page proposed order), don't be intimidated. Take a look at what is being ordered. Is it plainly written?
If you can see how the other party in your case could come up with an interpretation that steps all over your expectations, crushes your rights as a parent, and upsets the general peaceful conduct of your household, then cross that language out or change it! Don't accept the explanation that "It's standard language."
If you'd like to talk about your particular situation, before or after judgments or orders are entered, please give me a call, 7 days a week. My cell # is 312-493-4241. Yes, that's my personal cell #.
- Kevin R. Johnson, Attorney
www.divorce.nu
Many times, an opposing attorney will present me with a proposed 'judgment' or 'order' that contains what attorneys call 'boilerplate.' Boilerplate is paragraph upon paragraph of language that another attorney has on his or her computer, and that will often be called 'standard' language.
Despite what you might hear, there is actually very little standard language in divorce or custody orders. Other times, I'll be presented with paragraphs that sound OK, but that are almost sure to lead to expensive litigation at some time in the future.
I divide possible order and judgment paragraphs into those that are 'aspirational' and those that are 'enforceable,' and try to eliminate all aspirational language during negotiations. What I mean by aspirational are those paragraphs and sentences that sound good, but that don't provide any teeth for enforcement. For example:"Both parties shall attempt to accommodate the needs of the minor children and be flexible in adjusting the parenting schedule as the need arises."
This kind of language is a disaster, since it can be interpreted in many conflicting ways. Why include words like this? To make someone feel better? Let's look ahead. Let's say one parent wants to take the child to a family reunion on the other parent's time, and they point to this language and insist that it gives them to right to unilaterally alter the schedule. This is a problem -- since the meaning of "shall attempt," "be flexible," "the needs of the minor children," and "as the need arises" are all vague phrases -- easily twisted by either party.
Unclear, poorly-written language in Judgments or Court Orders can cause very-expensive problems later -- bad writing or editing leads to failed or unreasonable expectations, the filing of motions, and the need for court intervention.
On the other hand, clearly-written 'enforceable' language prevents problems and saves money. For example: "CHARLES shall have parenting time from the 2nd and 4th Friday of each month at 6:00 p.m. to the following Sunday at 6:00 p.m. In other words, these weekends."
This language is easy to understand, and difficult to misunderstand. This avoids the awful phrase 'every other weekend,' which could lead to problems when there's a holiday on a weekend and one parent decides there's a need to 'reset' the 'every other' weekend. ("You got last weekend, then you got Christmas the following weekend, and now you want the following weekend, too? That would three weekends in a row! That's not right! We need to reset the every-other-weekend to prevent that!")
Court orders and judgments are usually enforced through the 'contempt-of-court' process, where one party accuses the other of being in 'indirect civil contempt,' and then asked the court for remedy.
There is a case I like to refer to, from our 1st District Appellate Court, that explains the problem in enforcing vague or unclear language. It's the 1998 Steinberg decision, and there the Appellate Court said the following (and I quote.)
A "'mandate of the court must be clear before disobedience can subject a person to punishment.'" To support a finding of contempt, the order must be "so specific and clear as to be susceptible of only one interpretation." "It must not only be capable of reasonable interpretation, but that interpretation must be to the exclusion of other reasonable interpretations; it must be unambiguous."
Steinberg v. Ingram, 302 Ill. App. 3d 845 at 853 (1st Dist., 1998)(citations omitted.)In other words, the language of a court order or judgment must be clear - and it is difficult or impossible to enforce vague or unclear language! So don't let anyone waste your time and money, now and in the future, by including wishy-washy, loosey-goosey or 'aspirational' language in your court order or judgment! Only enforceable provisions belong in a court order or judgment.
If you're involved in a custody or divorce case, and you're presented with a long, detailed proposed judgment or order (or even a 2-page proposed order), don't be intimidated. Take a look at what is being ordered. Is it plainly written?
- Could two people disagree about what 'every other weekend' means, as time goes on?
- Could there be disagreement about what 'the child's usual activities' means?
- Could there be misunderstanding about 'each parent shall allow the other parent to take the child to special occasions and activities upon 7 days' notice, regardless of the other parent's scheduled parenting time?'
If you can see how the other party in your case could come up with an interpretation that steps all over your expectations, crushes your rights as a parent, and upsets the general peaceful conduct of your household, then cross that language out or change it! Don't accept the explanation that "It's standard language."
If you'd like to talk about your particular situation, before or after judgments or orders are entered, please give me a call, 7 days a week. My cell # is 312-493-4241. Yes, that's my personal cell #.
- Kevin R. Johnson, Attorney
www.divorce.nu
