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In an earlier post I offered to share certain provisions of a generic Property Settlement Agreement to highlight both why such provisions are typically included in professionally drafted agreements and how such provisions can be helpful to parties and lawyers. Most of the provisions I’ll share are considered “boilerplate;” similar provisions appear in virtually all well drafted property settlement agreements. Naturally, while these provisions may be helpful to include in an agreement, collectively they are no substitute for a comprehensive agreement drafted by an experienced family law attorney.
A common provision missing from many client-drafted separation agreements (and some divorce lawyer-drafted agreements as well) is a provision regarding attorney’s fees for enforcement.
ENFORCEMENT OF PROVISIONS OF AGREEMENT . The parties agree that any reasonable expenses incurred by a party in the successful enforcement of any of the provisions of this Agreement, or in taking action as a result of the breach of this Agreement by the other party, whether through litigation or other action necessary to compel compliance herewith, or to cure such breach, shall be borne by the defaulting party. Any such expenses incurred by a party in the successful defense to any such action shall be borne by the party seeking to enforce compliance. “Reasonable Expenses” as referenced herein shall include, but not be limited to, counsel fees, court costs, and expenses of travel.
Such provisions give teeth to the agreement. If a clear breach exists, the “innocent” party benefits from knowing his/her reasonable costs will likely be shifted to the other party when the breach is proven. If, on the other hand, the breach is less clear, the “innocent” party might pause to consider the prospect of paying the other side’s costs if the breach cannot be proven.
Note also that “reasonable expenses” will often vary from jurisdiction to jurisdiction and often from judge to judge. A court may award you some, none or all of your expenses depending upon the particular circumstances. If you’ve got questions about property settlement agreements and/or attorney’s fees, feel free to drop me a line.
Jason A. Weis, Esquire – Curran|Moher P.C. – jweis@curranmoher.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020.
