The Better Chancery Practice Blog

Sanford v. Sanford, decided May 8, 2012, by the COA is the latest in a line of cases that mandate a written agreement settling all issues between the parties before the trial court may grant an irreconcilable differences divorce.

I will spare you a recitation of the convoluted procedural history that led to the appeal. You can read it for yourself. In essence, what happened is a fairly familiar script:

• Parties and attorneys assemble for some proceeding, perhaps a temporary hearing;
• In the course of negotiations, the attorneys sense that the whole case can be settled. It may be that one or both parties have been intransigent up to this point and the lawyers sense that if they push ahead, maybe they can get the case resolved;
• The lawyers shuttle back and forth cajoling and wheedling, cobbling together a rough product, doing their best to smooth the edges, with uneven success;
• Finally, in hopes that the “settlement” can be held together against the stresses, they recite it into the record, get the parties to mumble their assent numbly, have the court approve it, and get the court reporter to transcribe it as the “written agreement.”

In Sanford, however, Samantha reconsidered and filed a withdrawal of her “consent.” The chancellor denied it, she appealed, and the COA reversed, reiterating its rule that the consent must be in writing, and that it is not sufficient to have the court reporter take the dictated agreement and treat it as an enforceable consent to divorce and/or PSA. In making its decision, the court distinguished a couple of cases that have upheld announced agreements.

Judge Fair dissented, joined by Judges Carlton and Barnes. They would have held that the procedure satisfied the written agreement requirement of the statute. I think most practitioners who have been in that hot-box situation would join in the dissent. But the majority of the court is more comfortable with the formality of a separate, written, signed agreement.

Many lawyers come to court toting along a laptop or at least a zip-drive (i.e., thumb-drive, or USB-drive) or other storage device with form files so that they can hammer out a PSA or agreed judgment or consent while the judge waits. Those of you who are handicapped by being chained to 19th-century technology (pen and paper or quill and parchment) will either have to drag along a secretary with the necessary skills, or upgrade your skills into the 21st century, or tell your client a settlement will just have to wait until some less opportune time.

In any event, the message Sanford sends is pretty clear: get a written agreement signed by the parties if you expect it to pass appellate muster. Shortcuts will not be tolerated.

I used to tell my clients,” We can do it quick or we can do it right.” Translation: “We can cut corners, or we can take a tad longer and make sure we do it in such a way that it can’t be undone.”