The Divorce Agreement.
When couples divorce there are certain items that need to be dealt with to consider the divorce complete. These issues include ending the status of the marriage, addressing the custody and visitation of minor children, setting child and spousal support and dividing up the assets and debts. Of these issues, typically the Court will maintain the authority to make changes to the custody terms, as well as child support and spousal support, as circumstances related to the children and to the finances change as life moves on. Unless a couple elects to continue to jointly hold an asset or liability for some reason, once the property division has been completed the Court is usually done with that issue and there is no need to return to it later.
It is very practical for the Court to maintain the ability to change custody, child support, and spousal support when warranted. We can’t know everything that will happen in the future when we are crafting agreements, so as circumstances change, it may be appropriate to change the sharing schedules of children to accomplish what is best for them. The same is true when there is a substantial change to the financial picture that renders it essential to adjust support to make sure everyone’s needs are being met and to make sure both spouses are contributing their fair share. Nobody wants to have to keep returning to the Court to have things changed, or even have to come back to sit with a mediator to address new issues that have arisen if they have taken the out of court approach. There are a few things we can do setting up these divorce agreements to make them as long lasting and far reaching as possible. The first obvious thing we can do is to be sure to add as much detail as possible. The second is to try to look as far down the road as possible to identify anticipated changes, or to spell out reasonable expectations so that appropriate adjustments might be built into the agreement given the passage of time. The third thing we can do is to include a mechanism for informally addressing adjustments down the road that includes how information will be exchanged, when the timing will be right, and how the change will be implemented. All three of these strategies are essential to building lasting agreements and avoid the need to keep coming back to address these “reserved” issues.
Detail, Detail, Detail.
The Court will accept a pretty vague agreement. I have couples that come in and wish for their custody agreement to say that they will share joint physical custody of their children with the specific schedule to be by mutual agreement. With some other required language, the Court will accept this. I suggest to each couple that I work with to include some specifics to the agreement to be there as a map in the event disputes arise. A vague schedule may very well work, but when it doesn’t it is not long before the couple has to return to the drawing board or to the Court. It is far better to be specific and then agree to be flexible to best meet the needs of the kids as the need arises. I tell couples the Judge won’t come knocking on your door to hold you to the written terms if you and the other parent are agreeing to do something different. When there is disagreement, the detailed schedule is there to navigate you through it and to hold each other accountable to.
When we get to the financial issues, the Court does have some requirements for specifics. California has guideline child support, and agreements submitted to the Court are required to identify what guideline child support would be, whether or not the couple is agreeing to the guideline number, and if they are not, additional language is required to opt out of the guideline amount. It is again very valuable to provide detail in the agreement about what the financial picture is, what the expectations are for such things as child care, extracurricular activities, health insurance, uncovered medical needs, as well as all the considerations that have gone into deciding the issue of spousal support. There are a number of factors the Court is to consider in setting spousal support and spelling them out in the agreement is helpful in making it clear when it might be appropriate to adjust the support. In conjunction with “trying to look further down the road” which I address next, taking time to add this detail may not be required by the clerk when the agreement gets accepted, but goes a long way in helping couples avoid a prompt return to the Court or to a sit down with their out of Court divorce professional.
Forward Looking Agreements.
For many of the issues we address in divorce, we are taking a snapshot in time. For property division much of the inquiry is about what was there to be divided at the time the couple separated. For custody the inquiry is what schedule is in the best interest of the children now. For child and spousal support, what is the financial picture now. We are doing our clients a much greater service if we can help them peek into the future to navigate them as far down the road as possible with the terms we put into the agreement. This again is not required by the clerk to process the agreement, but avoids the need for the couple to have to return promptly to the Court.
Some examples of further reaching custody agreements might involve an expanding schedule for a younger child who might be nursing, or is easing into the comfort of having one parent provide the primary care. It might be looking down the road to an anticipated work schedule change and building a schedule adjustment given that upcoming change. It could be addressing an anticipated move and building a new schedule to be in place when that move takes place. It could be a formal recognition in the agreement that it will be appropriate to sit down after a certain passage of time to explore an expansion or an adjustment to the schedule. Addressing these things can provide a clear path through these issues as they arrive to avoid the need to file motions and seek Court involvement.
With the finances there is a lot of future planning that can be done in the agreement. Sometimes one spouse may have been out of the work force leading into the divorce. They may be pursuing education to improve their employment options, or may just need time to get into a position where they can return to work, or seek to work for the first time. There are lots of options to consider to address expectations and time frames for obtaining employment. The best option may not be rushing into a position that is limiting or results in substantial child care costs offsetting the benefit of the employment. Someone may be pursuing getting a business off the ground that could have long term benefits to the finances of the parties. Maybe the couple is not too far off from retirement and building an adjustment to the support given the upcoming retirement will allow them to have the comfort of knowing what that shift will look like as they plan for the future. Helping couples navigate these anticipated events now, and helping them set clear future expectations to hold each other accountable to are important and valuable details we can add to their agreements.
Mechanisms to Ease Future Change.
When we sit at the table to settle a divorce we don’t have a crystal ball to see all that will come in the future. As mentioned at the start, the Court makes these things modifiable because we can’t know all changes that might occur. We can, however, help couples put a process in place for addressing these changes short of having to go back to the Judge. Most couples who mediate can agree to first seek to resolve any necessary changes by first sitting back down with each other to sort things out, or to sit back down with the mediator. I had one couple who agreed to exchange their year end paystubs each year by a certain date and have me run an updated Dissomaster child support and spousal support calculation. If the numbers resulted in any significant change to the support amounts, they would have me write up a stipulation and their agreement was to cooperate with signing it and shifting the support. This is not how the Court would handle it as permanent spousal support is not based on the support calculator, but for this couple the arrangement worked for them. Putting provisions into the agreement that signal when it will be appropriate to sit back down for further discussions can be helpful to keep both spouses on the same page when the time comes and to have willingness to work together to address the anticipated change. The Court’s mechanism is for the spouse seeking the change to file a motion with the Court and get it served on the other spouse. Both sides are immediately on the hook for attorney’s fees to address something that might easily be dealt with between them.
The drafting of the divorce agreement is a very important part of the divorce process. It is valuable for couples to work with a professional who will seek to add as much detail as possible to the written divorce agreement so expectations are clear. When we look at the issues of custody and support that remain modifiable after the agreement is filed, it is important to include as much foresight as possible in the terms to avoid the need to immediately have to sit back down to further adjust them. Finally, it is helpful to consider building mechanisms for the couple to use to address future changes short of having to re-engage attorneys and involve the Court. Providing detail and depth in our divorce agreements is an essential part of a healthy divorce.