I occasionally wake up in the middle of the night with an idea about one of my divorce cases that I need to e-mail to myself for later review before it’s lost. Most honest family law attorneys will admit that we sometimes lose sleep worrying about the challenges faced by our clients and whether we are coming up short in protecting them.
We truly care and never want to make a mistake, but unfortunately, even the most diligent attorney will make a couple of mistakes over the course of a career. It is scary for the parties, and it is scary for the attorneys too.
When Divorce Attorneys Make a Mistake
Outside of a collaborative divorce case, most attorneys will not explain their mistake to the client and admit they blew it. They fear the double whammy of harm to their reputation and a malpractice claim.
Divorce Settlement Agreements with Mistakes
Just this year, I consulted with two separate clients whose prior family law attorneys - reputable attorneys - had made significant drafting errors in their settlement agreements that would cost them thousands.
Unfortunately, in each case, the error was not discovered until after both parties had signed the papers, and nothing could be done to make it right. In Virginia, the appellate caselaw makes it incredibly difficult and rare to set aside or get out of a signed settlement agreement.
How a Collaborative Divorce Reduces the Risk of Errors
The good news is that the risk of a drafting error is avoided in the collaborative divorce process. At the start of a collaborative divorce case, you and your spouse will sign a Collaborative Participation Agreement, which sets forth the binding rules of the process you are entering into.
One of these important rules is that the parties will not take advantage of any mistakes, misunderstandings, inconsistencies or miscalculations of each other or any other participant, and shall disclose them and seek to have them corrected.
How a Mistake Could Happen
Imagine that Gwyneth and Chris are divorcing. Through their attorneys, they reach a conceptual deal that Gwyneth will use her sole and separate trust fund to pay off the $1,000,000 mortgage balance remaining on the marital home to relieve each party from having to come up with half of the payment each month.
Gwyneth will then live in the home with the parties’ son, Moses, until he graduates high school at which time the home will be sold. When the proceeds of sale are divided, Gwyneth will be paid back for advancing the mortgage payments from her sole and separate trust fund.
The attorneys agree that Chris’ attorney will draft the agreement. Chris’ attorney makes a mistake by writing that the net proceeds of sale will initially be divided equally and then Chris’ share will be decreased and Gwyneth’s share will be increased by the sum of $1,000,000. The $1,000,000 should have come off the top before division of the net proceeds, so half of the mortgage was essentially paid by each party during their co-ownership.
What Happens When an Error is Made in a Collaborative Divorce
Outside of collaborative divorce, Gwyneth’s attorney would likely explain to her that the agreement contains a drafting error to her $500,000 benefit and would ask whether she wants to call this error to her spouse’s attention or not.
This kind of temptation can be difficult for a party to resist, especially when they have complicated feelings about their divorce. If Gwyneth wants to hurry up and sign the agreement to secure her windfall, it would be unethical for her counsel to alert Chris’ lawyer to the error. Chris and his counsel may or may not ever realize an error was made. If they do, the only recourse is likely for Chris to sue his own counsel for malpractice.
The Benefits of Collaborative Divorce in Virginia
In collaborative divorce, the Collaborative Participation Agreement leaves no question as to whether the error should be pointed out.
Of course, it should be pointed out! Gwyneth’s attorney would promptly communicate to Chris’ attorney that this draft does not seem to reflect the terms of the conceptual deal, and the agreement would be corrected. This outcome is fair to everyone involved.
About the Author
Cynthia Radomsky has been in practice since 2006 and is partner at Powell Radomsky, PLLC in Fairfax, Virginia. Ms. Radomsky practices only family law and believes that most cases can and should be settled outside of a courtroom. She is the Chair Elect of the Virginia Collaborative Professionals (VaCP); a member of the Board of the Collaborative Professionals of Northern Virginia (CPNV); and, a member of the International Academy of Collaborative Professionals (IACP).
Leave a Reply