In this author’s opinion, one of the great disservices that we, as lawyers, are told in law school is the notion that using “legalese,” pseudo-Latin prose, and/or long-winded lawyer sounding words and grammar somehow puts our ability to convey a written point in a manner that far surpasses the ability of non-lawyers to do the exact same thing.
My National Institute for Trial Advocacy Instructor once told me that it was not the polished prose of the “Bobby Donnell” character (Dylan McDermott) in the late 1990s television show known as The Practice whose advocacy skills were worthy of praise, but instead, the down to earth, Plain English advocacy of the less suave character known as “Jimmy” (Michael Badalucco).
The more that I draft separation or other agreements in divorce cases, the more I am convinced that the Plain English, “Jimmy” style of written (and oral) advocacy is a much surer bet in terms of trying to avoid future disputes over the meaning of written words in those same agreements.
That brings us to Justice Jeffery S. Sunshine’s recent decision in E.S. v. H.G., 2025 NY Slip Op 50610(U) (Kings Cty., 2025).
In E.S., the parties entered into a stipulation of settlement (the “agreement”) resolving their divorce in 2006. At the time of the divorce (also in 2006), the parties had two minor children, ages four and six. Post-judgment litigation ensued when the mother sought to enforce the Agreement due to the father’s child support arrears.
At the time of the post-judgment application seeking enforcement on child support that is the subject of E.S., the parties—“who are both attorneys”—represented themselves. The father claimed that after the mother sought enforcement, he paid $82,400.37 in child support and “owes no other arrears for child support”. The mother disagreed.
The dispute centered upon differing interpretations of Article VI, paragraph “4” of the agreement, which provides:
Notwithstanding any provision of this Article of the contrary, if one of the unemancipated Children is to attend undergraduate college or university and is living away from the Mother's residence, while the other unemancipated Child is living at the Mother’s residence, the basic monthly child support amount will be reduced by one-eighth (1/8) of the current level of basic child support for both unemancipated Children; if one of the Children is emancipated and the other Child is unemancipated and living at the Mother's residence, or if both unemancipated Children are attending undergraduate college or university and living away from the Mother's residence, the basic monthly child support amount will be reduced by one-quarter (1/4) of the amount from then current; if one of the Children is emancipated and the other Child is unemancipated and attending ungraduated college or university and is living away from the Mother's residence, the basic monthly child support amount will be reduced by one-half (1/2) of the amount from the current level; once both Children are emancipated, basic child support shall terminate, provided that no reduction in support will occur unless the Father's child support obligations are current and up- to-date (emphasis added).
In my attempt to simplify this: (a) the father asserted that the monies he paid to the mother as and for child support arrears satisfied his obligation “on his theory that he was entitled to reduced child support after the children went to college”; and (b) the mother asserted that the father still owed child support arrears of $64,126.43 from January 2019 through May 2023 because “the father forfeited the benefit of the step-down child support sums in paragraph 4 because he was in arrears."
To (hopefully) bring home the point: (a) the mother asserted that the purpose of Paragraph “4” was to incentivize the father (who conceded he was in arrears) to “pay his child support on time and that he would, in effect, be penalized for being in arrears of child support by having to pay the full sum of unallocated child support each month that he was in arrears; and (b) the father asserted that the “placement of a semi-colon before the relevant language suggests an intention to distinguish it from the rest of the paragraph, which outlined the reductions in child support based on college enrollment or emancipation, and that he is entitled to the benefit of the step-down structure regardless of whether he paid support on time and that the final clause was simply to reinforce the fact that emancipation did not eliminate any outstanding child support arrears”.
At the risk of creating a larger headache, the mother argued that the “language after the comma (i.e., “provided that no reduction in support will occur unless the father’s child support obligations are current and up- to-date”), applies not just to the context of the language in the final clause but, in effect, that the comma was supposed to be a semicolon and that it was a prerequisite for him receiving the benefit of the prior clauses detailing the step-down structure.”
In contrast, the father argued that the language after the comma “only applies to the final clause and is not a prerequisite for him receiving the benefit of the prior clauses detailing the step-down structure”.
The decision concluded as follows:
While the mother’s reading of Paragraph 4 appears to be the most logical within the context of the entire Child Support section of the stipulation of settlement; however, the Court cannot make such a grammatical change without holding an evidentiary hearing …
The Court will hold a brief evidentiary hearing on the following issues: 1) whether the last comma in Paragraph 4 was intended to be a stand-alone clause [i.e., was the last comma a typographical mistake and supposed to be a semicolon to separate it as an independent clause like all of the proceeding clauses that make up Paragraph 4 or does the language following the comma only refer to the final clause]; 2) based on the determination of issue #1 to calculate what, if any, arrears are outstanding; and 3) the calculation of statutory interest consistent with this opinion on any arrears retroactive to the date of application.
Both parties have legitimate arguments in the E.S. case, based upon how Paragraph “4” is drafted. What I believe we can learn from E.S. is that once again, there is value in passing on intricately drafted clauses decorated with seemingly pristine grammatical exuberance. Instead, stick with the Plain English principle, no matter how complex the concept you want to embody may seem to put into written words.
"Practice Tip: Using Plain English in Divorce Agreements," by Alan Feigenbaum was published in the New York Law Journal on June 26, 2025.
Reprinted with permission from the June 26, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.