Problem.Drafting.Educational expenses

     This drafting exercise is suggested by an example presented in Burnham, Drafting Contracts 7.6 (2d Ed. Michie). 

     You are a lawyer much of whose practice consists of mediation.  Among other matters, you mediate property settlement, child custody, and spousal and child support issues presented by a husband and wife who are in the process of dissolving their marriage.  Where successful, husband and wife reach agreement on these issues and you draft a written agreement for their review and signature.  You recommend that each consult separate counsel for an independent review of the written agreement prior to signature.  Any agreement on child custody and support issues is subject to approval by the court. 

     Hal and Cynthia Cooker, Arizona residents, have come to you to mediate the issues presented by the dissolution of their marriage.  They have two children, twins Kerry and McKenzie, both high school freshmen.  Both daughters have expressed interest in attending colleges, private and public, in Arizona and elsewhere, and both have also have expressed interest in professional careers that would require education beyond the undergraduate degree.  Because the twins have not yet received any high school grades and, obviously, have not yet taken the SAT, the parents cannot yet predict the kind of post-secondary education for which either daughter would qualify.

     You raise with Hal and Cynthia the issue of the financing of their daughters' post-secondary education.  They agree that Hal  should finance at least some of their daughters' post-secondary education but both also agree that there are limits to Hal's financial resources.  Absent a dramatic and unexpected increase in his income he could not realistically afford to pay much more than the tuition currently being charged by the University of Arizona.  Based on this preliminary general agreement between them, and based upon the interests that have been expressed by their daughters, Hal and Cynthia ask that you draft some terms dealing with the payment of educational expenses that can be the basis for discussion and negotiation at their next mediation session with you. 

     Draft the terms.  In doing so, bear in mind:

     (1) The objectives of your client.

     (2)  In law practice, you will accumulate experience in your field(s) of specialty, from work for prior clients, including your drafts of previous contracts or dispute resolution about previous contracts drafted by others, from a network with other professionals in the field, and from form books and other resource materials.   That experience will help you identify some of the issues you need to consider in drafting.  For example, you may know from your experience that one difficult issue is raised by the possibility that the husband's income may dramatically and unexpectedly increase or decrease; you or others may have previously drafted clauses addressing that issue.

     (3)  You should use your imagination and creativity to identify issues and solutions for which neither you nor others have  previous experience and for which there are no samples. 

     (4)  It is virtually impossible to anticipate every contingency.  Moreover, even were one to be able to anticipate every contingency, drafting a solution for every contingency would result in a contract the length of an encyclopedia, a contract that nobody wants and nobody can afford to have drafted.    Would it really be useful and cost effective to draft a clause dealing with the possibility that the State of Arizona might secede from the union and abolish its university system?