But, We Agree

Family law practitioners hear it every day, and it’s usually not true. Well-intentioned people are unaware that it has perceptual, psychological, legal, and practical implications. Clients urgently speak of an agreement like it is a wild animal to be caught. For the unexperienced attorney, it may turn one into a dreaded agreement chaser. Clients demand you chase what they say they agree to, while harshly criticizing and undervaluing you as an order-taking attorney. The agreement chaser dutifully writes “whatever the client wants” in that moment, only to find themselves responsible for the dominoes that inevitably fall thereafter.

The inexperienced attorney thinks an agreement is nice and safe; the experienced attorney senses potential danger. Ah, the parts of family law they didn’t teach us in law school.

Perception of agreement

Divorce clients and potential divorce clients say “we agree,” even when they are not even close to agreement. Most mean they agree (one or the other has acquiesced to the request to divorce) to get divorced, or they think they will, or at least they intend to, agree on everything, or they just want out so badly they’re ready to agree to anything. They may be vaguely specific: we’re just (notice the qualifier, just) going to split everything (notice the immense vaguery of “everything”).

Note that if you turn into an agreement chaser, you have accepted their premise that everything is agreed, and implicitly that everything will go good. So when you follow up with some due diligence, seek some information, and begin to advise of what “splitting everything” means, including QDRO’s, growth on non-marital, potential tax consequences, et cetera, they may perceive you are not pursuing their agreement. It’s a bit of a trap.?

Out-of-court agreements

An entire book could be dedicated to troubles with out-of-court agreements. As we advise, it doesn’t bind the other side, but be assured they will use it against you. And, it seems prevalent in the earliest stages of divorce, when little to no information has been exchanged, and no one has discussed marital versus non-marital, let alone growth on non-marital, for example.

Post-decree matters are replete with: but we agreed that . . . Clients may say “we agree” without fully understanding something as simple as child support modification, what is and isn’t included in an agreement to modify, how related laws may affect calculations, what income can be averaged or imputed, retroactivity, inadvertent re-setting of arrearages (including child support arrearages, or arrearages on the extras, let alone unknowingly resetting of delinquency or pay orders).

Worse, sometimes clients enter into out-of-court oral agreements. It can result in one party foregoing his or her rights, at least for a period of time, or for one party being estopped from seeking relief they would have been entitled to. It can result in honest misunderstandings with detriment (and increased attorney’s fees) to both parties.

Illinois courts have long held that out of court agreements are not valid. In Re Marriage of Case, 351 Ill.App.3d 907, 815 N.E.2d 67, 286 Ill.Dec. 857 (4th Dist. 2004), the court held that the parties did not have the authority to make this out of court agreement, stating:

As our supreme court has explained,?courts have the exclusive authority to modify?child?[***9]??support?and are not bound by the parties' agreements as to?child support.?Blisset v. Blisset, 123 Ill. 2d 161, 167, 526 N.E.2d 125, 127-28, 121 Ill. Dec. 931 (1988).??In deciding?child-support?matters, a court must protect the children's best interests.?Blisset, 123 Ill. 2d at 167, 526 N.E.2d at 128. To allow former spouses to modify a?child-support??[*912]??order by creating a new agreement between themselves without judicial approval would circumvent judicial protection of the children's interests.?Blisset, 123 Ill. 2d at 167-68, 526 N.E.2d at 128.?Former spouses could agree to modify?child-support?obligations to benefit themselves while adversely affecting their children's best interests.?A parent cannot bargain away his or her children's interests. Thus, parents may create an enforceable agreement for modification of?child support?only by petitioning the court for support modification and then establishing, to the court's satisfaction, the parties' agreement is in accordance with the children's best interests.?Blisset, 123 Ill. 2d at 168, 526 N.E.2d at 128.????

Unintended consequences of “agreement"

Can you imagine a patient telling a doctor, but my spouse and I agree that I want that particular prescription? So write it up, Doc. No doctor would let the patient write their own prescriptions, based only on the patient saying they want it. The doctor has the responsibility to reduce or eliminate unintended consequences, and advise of risks, as well as to make sure the prescription may actually help the patient. Common sense.

But when it comes to law, the uninformed client wants to grab that prescription pad and tell you what they want. We posit that inexperienced attorneys think agreements are nice and safe; but experienced attorneys realize that agreements are potentially dangerous.? Think of your figurative prescription pad; do not let it get in the wrong hands, and don’t let others write on it.

On the other hand, if a client is fully aware of the facts (full factual disclosure – at least basic discovery) and well-informed as to their rights and legal options, and have been properly advised (with appropriate time to process), they may well be in a position to know their legal rights, likely outcomes, economics of settlement versus litigation, as well as other important or salient factors. Yes, a well-informed, well-advised client may be in a position to say: here’s what I prefer to propose, or counter-propose. An advocate can hone in on an effective agreement without chasing it off, or stirring it into frenzy.

But those who chase agreements like wild beasts may discover that an agreement, or proposed agreement (typically sought just for the sake of agreement, or in response to a desperate plea from a client), can lead to trouble. When an agreement is imminent or reached, it must be carefully drafted. An inexperienced attorney may write the “simple” child support provision, and inadvertently erase an arrearage, or mistakenly combine the support component with the extras provisions. Watch out for the form of the accompanying support order. Did we just change the emancipation date? To the unaware, there are potential surprises around every corner.

Once a proposed agreement is in writing, the other side may not actually agree, or they may add proposed terms to the agreement. Saying “I agree to pay support” and seeing it in writing, with the add-ons, may trigger severe disagreement. After all, there is an art to negotiating, drafting, and accomplishing an agreement. It may be more like catching a butterfly than a wild animal. The person who “agreed” to pay support, or the person who “agreed” to stop support may even bring up completely new issues (e.g. termination of child support may turn into the establishment of college expenses; increase in child support may turn into a request for more parenting time, etc.). This is a phenomenon we see with regularity. An example: I filed a pro se motion for child support, and now he is fighting for fifty/fifty. He told the judge, and now I have to go to mediation. He wasn’t even seeing the kids. Agreement, or in this case, a simple request knocked down some unforeseen dominoes.

Or, there’s the classic: I filed for Legal Separation hoping he would go to marriage counseling. Rather than just order-taking (think prescription writing), advise that client of unintended consequences before they file. You know the other party will most likely counter-file for divorce.

Advocate, and pursue an excellent agreement

We have only scratched the surface of the perception, psychology, law, unintended consequences, timing, and problems that begin with “but, we agree.” May be well-intentioned, but it may also be a cry for help, a plea to not deal with information exchange and legal talk, or some desperation to grab at any agreement as though it is something wild to catch. Of course, afterwards there is plenty of time to dissect the mistakes and blame the agreement chaser.

Experienced practitioners can see the whole chessboard and know when and how to professionally pursue an effective agreement. They navigate clients through the information (and at least basic discovery) stage, analyze and advise, and manage the legalities, psychology, potential consequences, and art and timing of reaching a well-crafted agreement. They recognize that the biggest risk of chasing a bad agreement is: you might catch one.