Divorce agreements tell a story. The story speaks not only of arrangements for children’s living and times spent with each parent; it also delineates financial terms, which may include:
Who gets what assets and who has obligations to others, be it individuals or institutions
Money paid over time by one party to the other for child support and/or spousal support
Responsibility for health insurance and/or life insurance
Liability for children’s education
Tax obligations and entitlement to deductions
Like all stories, divorce agreements are not all the same; indeed they do not all cover the same areas, even for couples that have similar profiles. Some agreements focus on the here and now, leaving the future pretty much untouched. The philosophy behind this approach is that the future is unpredictable and no one can forecast future needs and/or ability to pay. Courts will therefore provide the natural recourse to settle issues that arise in the future and to address circumstances in “real” time.
Given the tensions surrounding divorce and the desire to reach a settlement and “be done” with the negotiations, many couples do not look to the future. They are too concerned about the present. And so, they, like many of their guides through the divorcing process, settle for an agreement that helps them move forward today, leaving tomorrow for tomorrow.
Over decades of working with divorcing and post-divorced couples, we have compiled an overview of the most common issues that have not been settled at the time of divorce, the issues that frequently arise after divorce, forcing couples back into negotiations.
Children’s Post-secondary Education:
Is selection of school limited by cost, geography, or assessment of its future financial worth?
Who pays? The child? The parents and the child? The parents (one or both)?
Is liability for parental contribution(s) an assessment of ability to pay? How is ability to pay defined?
Child’s refusal to follow the parenting schedule
Parent’s refusal to follow the parenting schedule
Impact of parents’ new partners on child custody arrangements
Parental disagreement on how to handle child-related problems, including differing views on kind of professional help needed for a child and payment of same
Requests for change in support obligations due to support recipient’s receipt of windfall (e.g., inheritance)
Voluntary reduction in income
Cohabitation of spousal support recipient without terms for impact of arrangement on support
Death of paying spouse without provisions for life insurance or collateral pledge
Illness of spouse affecting the need for additional support or the inability to maintain existing support provisions.
The list of post-divorce surprises extends far beyond the examples cited herein. Then, too, there are catastrophic events that are totally unpredictable. Not surprisingly the Pandemic, in and of itself, upended some of the most carefully crafted agreements. No agreement could have foreseen the havoc evoked by the Covid epidemic. Yet, on a positive note, we learned from former clients that many were able to use the communication skills developed in mediation to adjust their agreements to accommodate an unknown world order.
Mediation offers couples the opportunity to craft agreements that provide for the future as well as the present. Even in the face of cataclysmic events, the communication and collaboration strategies and skills developed in mediation enable former partners to tackle, as a couple, unanticipated changes.
Post-divorce mediation, much the same as pre-divorce mediation, helps former spouses to acquire the skills to settle their disputes and to work together when new issues arise. Learning to listen to each other and to problem solve when issues arise is often the key to having a post divorce future without dissension and dependency on court intervention.