Divorce settlements do not come easily. The seemingly endless negotiations; the tears and the angst; the arguments and counterarguments; the demands and the compromises are all part of the complex and confusing arena in which separating spouses move in and out. The issues and the questions mount even as the desire to finish propels you and your spouse forward. Still the urgent need to “be done” must not overshadow the key objective of structuring a settlement that is not only clear and comprehensive, but also does not leave glaring omissions and unresolved issues.
In mediation we deal with divorcing couples and post-divorced couples. It is with the post-divorce clients that we are confronted, again and again, with Separation Agreements that actually raise questions. Yes, in the very body of the Agreement an alarm is sounded, a warning issued—more decision-making may be in your future. Here the documents speak of modification of support, of changing relationships, and of child-related decisions. And, then, without any attempt at specificity, without any resolution of how the issues, if and/or when they arise, will be resolved, the documents simply shrug off responsibility. Rather than confront potential disagreements, the Agreement dictates that the couple will deal with the situation in the future, and, if unsuccessful, they will follow dispute resolution terms.
While as a mediator I endorse and support dispute resolution, I do not think that leaving an Agreement littered with unresolved questions serves clients; I do not think it is appropriate to tell clients not to worry, they can always go to mediation or even back to court for resolution. How cavalier can one be? Going to court is the one place that the divorcing couple does not wish to return. Having future issues that are purposively omitted due to lack of time or the lawyers or mediator’s flagging efforts to help individuals confront the “devil in the detail” is simply not okay.
In particular the following examples of issues “raised” and unresolved in Separation Agreements are presented as illustrative of our argument:
If either party receives an inheritance in the future (without mention of from whom, of the amount, or the circumstances of the bequest), the parties will have to decide if the receipt of said money will affect the amount of child support and/or alimony as stipulated in the Agreement. With some effort, the lawyers or mediator could have helped the couple explore the impact of potential inheritances. They could have considered whether an inheritance of some specified amount would affect support obligations or perhaps have a different ramification, such as require a contribution toward funding a child’s college education or loan pay down.
If part of a spouse’s compensation is paid in stock, will the payer’s alimony and/or child support obligation include a percentage of the stock compensation? It is actually hard to understand how income used for the calculation of support was not clearly defined in the Agreement, even if such form of compensation (e.g., stock) was not at the time of divorce part of either spouse’s employment package. Would it have been so difficult to discuss compensation more broadly and to reach agreements on how different forms would either be differentiated or treated in the same manner?
Agreements often state that each parent will contribute to funding their child’s postsecondary education but leave the percentage or amount of each parent’s contribution to be decided in the future. Why not specify individual parental liability? Or, if not, at least help the couple to explore different approaches, such as saving together for college or maybe even limiting liability, to perhaps a state university? Was it really beyond the role of attorneys or mediators to tackle questions of payment for schooling? Or did they not even try—believing that the question could be handled at another time?
Agreements often refer to recalculation if there is a “substantial” increase or decrease in either spouse’s income. Now this is certainly an interesting reference—what in fact does “substantial” mean? Does it refer to a 10% increase/decrease? Or maybe it means a 20% increase/decrease? And regardless of the number, how in fact is the recalculation undertaken? Does the couple use a particular formula? Do they effect the change within one month? When? Who is involved in the recalculation? The couple? The court?
Then, too, there are terms in many agreements for parental sharing of children’s extracurricular activities and extraordinary expenses. This is certainly a positive step. Yet how do they decide what they will fund jointly? In what proportion are the expenses shared? Does one spouse front the money and the other reimburses him/her? If so, when does repayment need to be made and what kind of verification of the expenditure needs to be made? The process can be simplified and clarified without leaving the couple to struggle not only with the cost, but also with the process.
Attorneys and mediators often tell clients to concentrate on the here and now, to tackle the issues that confront them in the present. The future, they argue, is too difficult to conceptualize, too variable to be part of the settlement. Shrugging off the responsibility of at least raising future concerns for discussion is a striking disservice to divorcing clients. Clients need to be helped to confront difficult questions when they are in the thick of the negotiations. Clearly they may not be able to address all conceivable future concerns, but that does not mean that only the present is the subject for settlement discussions. By including so many open issues in Separation Agreements, it is being acknowledged, in word and in deed that these future developments are important, important enough to include in an Agreement. Yet, they are obviously not important enough to include the actual terms and contingencies for settlement. All “fights” should not be left for another day. The devil is indeed in the details and omissions are in and of themselves part of the details.