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I
have recently discovered that the reason I cannot
remember all of the details of law practice that I
used to be able to remember is because of the vast
quantity of information I have accumulated over the
years, rather than the accumulation of the years.
After all, we all seem to get busier by the minute.
This latest example
of absence of recall came when I forgot to remind
opposing counsel that she had left a few items out
of the decree she had drafted. The recall came when
the judge - properly - kicked back the uncontested
decree (yes, judges do read those things). We had
forgotten to deal with the contest of divorce that
necessarily comes with the filing of an Answer to
a Divorce Complaint. This article is intended to serve
as a reminder of those few things that we tend to
overlook in busy times, or with the passage of time
and the infrequency of the occasional venture into
domestic practice, we've just forgotten.
1. Uncontesting the
Contested Divorce. In drafting the settlement decree,
the party who is not taking the divorce must withdraw
the contest to the divorce and waive corroboration
of grounds in order to have a technically sustainable
decree. The process of "uncontesting" is
accomplished by either filing a pleading called Withdrawl
of Contest in which I usually state that the answer
is withdrawn, the contest is withdrawn (kind of like
sell, convey and transfer) and corroboration of grounds
is waived so that the matter may be presented to the
judge at any time without further notice (to the party
who is waiving his/her contest).
2. Security issues in
decrees. Removing the requirement that parties put
their social security numbers on the Domestic Coversheet
was an extremely important first step in making sure
that public documents like divorce decrees cease being
a fertile ground for identity theft. If you still
make it a practice of identifying debt responsibilities
by putting credit card numbers in property settlement
agreements ("PSA") please STOP! Do not make
it easy for identity thieves to steal account numbers
for banks, credit cards IRA's, etc. from your divorce
decrees. If you must put numbers anywhere, create
a separate document, such as a letter agreement signed
by the parties and referenced in the PSA or decree
as the instrument containing the identifying information
on accounts which the parties are responsible, but
which is not included in the PSA or decree for reasons
of personal security for the parties. The decree can
reference the "Sears Card #1, MBNA #16, etc.
and those references can tie back to the private letter
agreement containing account identification and balances.
3. Securing the Payment
for Secured Property for a Non-Possessory Owner. How
many times has a party agreed to take property upon
which both husband and wife are debtors, promise to
pay, indemnify and hold harmless, the non-possessory
party transfers title, by deed, assignment or otherwise,
and the possessory party defaults, only to have the
secured creditor come after the non-possessory, non-owner,
co-debtor? One solution is to allow the other party
to remain owner until the debt is paid or security
interest is released. Sample language, that also gives
the right of self-help repossession is below:
Wife shall be entitled
to possession of the 200_ (vehicle) . Whereas the
vehicle is financed with _____________________ and
said account is in both parties name, the parties
shall own the vehicle as tenants-in-common until Husband
pays said account in full. Husband shall then execute
all necessary documents to affect a title transfer,
within five days of receipt of said documents of title.
Wife shall pay all payments on said note owed on said
vehicle in a timely manner until said note is paid
in full. Wife agrees to maintain the vehicle in good
working order and repair and to maintain insurance
on said vehicle. Should the vehicle become damaged
beyond repair, the parties agree that any insurance
proceeds will be applied first to any indebtedness
owed on said vehicle and the remainder of the funds
shall be used by Wife as he desires. The parties agree
that should Wife default on said payments, Husband
shall be entitled to immediate possession of said
vehicle, and shall be entitled to sole ownership of
the vehicle unless Wife cures said default within
thirty (30) days of Husband's taking possession.
4. A provision many
people forget to include in the decree is the admonition
concerning failure to pay child support, and the potential
for termination of parental rights in the event of
serious non-support. A sample provision is set forth
as follows:
Pursuant to Ark. Code Ann. §9-9-220(c), [NAME
OF NON-CUSTODIAL PARENT] IS HEREBY NOTIFIED THAT FAILURE
TO PAY CHILD SUPPORT OR TO VISIT THE CHILD FOR AT
LEAST ONE (1) YEAR SHALL PROVIDE THE CUSTODIAL PARENT
WITH THE RIGHT TO INITIATE PROCEEDINGS TO TERMINATE
THE PARENTAL RIGHTS OF THE NON CUSTODIAL PARENT.
Many parties find this
provision in an agreed PSA to be down-right insulting.
If this provision is not included, notice and opportunity
to "cure" must be given prior to filing
the petition to terminate parental rights.
Finally, if you find
a provision in a decree that another attorney has
drafted that you like, copy it to a special forms
subdirectory that you have created to collect your
favorite provisions for decrees. Having pre-drafted
provisions keeps attorneys from re-inventing the wheel
each time we set about to draft. We all have form
documents, but in domestic practice, we can also benefit
from having form paragraphs, or forms files to deal
with particular issues.•
*
William G. Almand is a member of Hartsfield, Almand,
Denison and Mattes, PLLC in Little Rock. He is Chair
of the Domestic Relations Section of the Arkansas
Bar Association.
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