Most divorcing parties resolve their differences by entering into Separation and Property Settlement Agreements. Two recent Maryland appellate cases illustrate how an attorney can commit legal malpractice by drafting terms that are unenforceable.
In Dapp v. Dapp, the Court of Special Appeals found that the parties’ agreement to equally divide the husband’s Tier I pension benefits was unenforceable pursuant to the Railway Retirement Act.
In Guidash v. Tome, the Court of Special Appeals held the parties’ agreement that the custodial parent waived her right to receive child support was unenforceable, because it violated public policy. Parents may not waive or bargain away a child’s right to receive support. Walsh v. Walsh , 333 Md. 494, 504 (1994) (“Even before the guidelines, this Court made it clear that agreements between the parents were not binding on a court ordering child support.”); Stambaugh v. Child Support Enforcement Administration, 323 Md. 106, 111 (1991) (providing that the “duty to support one’s minor children may not be bargained away or waived”); Corapcioglu v. Roosevelt, 170 Md. App. 572, 606 (2006) (stating that “[a] parent may not bargain away the child’s right to support, and modification of that support, from the other parent”). Moreover child support, regardless of any parental agreement, is always subject to court modification.
Practice Pointer for Clients: Ask your attorney to provide you with definitive legal authority that any unusual term in your Separation and Property Settlement Agreement is fully enforceable under Maryland law.