The Divorce Industry and Courts in Maine say ‘Caveat emptor’ – Let the buyer beware

We have become fascinated by a variety of supposedly routine, signed formal agreements (or contracts) between Guardians ad litem (GALs) and consumers, which might be called “boilerplate” contracts.  These contracts are in writing, frequently follow a standard, stereotyped formula, and are widely used by GALs when they start to work with clients (parties) on a case.  More often than not, there is no effort made to fully inform those who sign such contracts about their downside.

Are these actions truly “contracts”, entered into willingly, with fully  informed consent between two or more parties, or is a “boilerplate” agreement a defective legal instrument that may endanger those who are forced to use it?  The very same boilerplate contract may be seen by legal authorities in two quite  different ways: (a) as a simple, legal, interpersonal agreement in which “ignorance of the law is no excuse”, and ‘caveat emptor’ applies? , or (b) a defective legal instrument foisted on an uninformed party with potential for significant personal harm (or a ‘tort’) involved?  The exact same contractual understanding can be seen by the legal profession as having two quite different legal points of view; a valid contract or a ‘tort’.

Very recently, there has been a great deal of public (and professional) interest in these “boilerplate” contracts that are cropping up in many industries.  They are especially common in the “divorce industry”.  There is considerable debate whether they are valid contracts, because frequently those who sign these documents don’t understand them, do not realize the full, potentially harmful consequences and may feel forced to agree without adequate debate, questioning or understanding of what they may be getting into.  This becomes painfully evident when those signing such an agreement realize only after the signing, as the contract plays out,  that they have agreed to actions which may be harmful to them or their interests. The client wakes up to the danger in the “contract” only after they have gotten into it, and is told, “Sorry, it’s too late!” “You agreed, here’s your signature!”  ‘Caveat emptor’!

The contractual issues that are getting a fresh look in some law schools are:
(a) The marked inequality of knowledge of the parties to the contract.  Those who work in the legal profession usually have extensive training in the nature of contracts; the average consumer frequently has very limited knowledge of the nature or legal basis of contracts.
(b) There is no attempt on the part of those issuing the contract to obtain fully “informed consent” from the signer.  How may this contract work against you?   What are the unfavorable things that could happen?  How may you terminate it?  Are you agreeing to this “contract” with your eyes wide open?
(c) Can a “boilerplate contract” without  “informed consent” be considered a defective (or even harmful) consumer product that exploits the public and that can be harmful to those who “buy” it?  Some legal teachers are examining “boilerplate” as a “tort”, or harm; rather than a dispute under contract law.  Does a “boilerplate” contract carry dangers to consumers that are similar to the dangers of being sold prescription drugs loaded with known side effects (and NO warning), or the sale of deliberately tainted food- also without warning?
(d) In divorce custody cases, as well as in other types of boilerplate contracts, such as with banks and other members of the “financial industry”, the legal remedy of taking the contractor to court for either harm or violation of contract is disallowed by the boilerplate or other legal protections.

In divorce cases it is disallowed, because both GALs and judges who present and enforce contracts have “Judicial immunity“.  In both situations it is a stacked deck against consumers.

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Additional information on boilerplate contracts we suggest reading the following book review published in the Wall Street Journal: “Boilerplate” by Margaret Jane Radin. Margaret Jane Radin is a law professor at the University of Michigan. The topic is highly relevant to the divorce industry and Guardians ad litem, Parental Coordinators and others subsidiaries of the divorce industry.