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Thinking Ahead with Separation Agreements: Avoid Modifications, Make Decisions Now
by Dr. Lynne C. Halem, Director of The Centre for Mediation and Dispute Resolution, Wellesley, MA

You are worn down, tired of arguing, tired of feeling confused and uncertain about a prospective settlement. You feel "done." You have no reserves left to haggle or to compromise. Your request to "end it all," your giving up or giving in is all to common. Reaching agreements is difficult in the best of circumstances; reaching agreement in divorce is especially draining — emotionally and financially.

Separation and divorce are not happy times; regardless of whether you are one who wants to divorce, there is sadness for unfilled dreams and hopes; there are fears of an uncertain future as a single individual. Yet despite all the inner calls to end it, to move forward, it is important to make sure that your final settlement does not leave dangling ends that may well lead to returns to legal counsel and in particular, returns to court. Lawyers are used to going to court, negotiating/litigating modifications are standard; it is part of their job description. But you, you who has thrown up your arms and said, "stop," will not find returns to the negotiation table a welcome outcome, not to mention the inevitable emotional and financial costs.

Legal counsel may advise that the future us unknown and that there is no need to plan for an unknown future. Yes, the future is unknown. Yet, just because we do not know if something will happen does not mean that we do not include provisions for its possible eventuality. Life is full of planning for an uncertain future — that is why we have auto insurance, home insurance, and health insurance, just to mention the obvious.

To help you in your planning and structuring of a settlement that is futuristic in nature, we have listed for your consideration a small sampling of issues/topics related to potential happenings. Please consider the following:

  • If your agreement provides for alimony, be sure that you agree on what will happen with payments in the event that the spouses receiving alimony lives with someone as if married (cohabitation). The three choices in the present law are each quite different and are very likely to engender major disagreement if cohabitation takes place in the future.
  • If your agreement includes alimony and child support, be sure that you include provisions for what will happen if one ends. If, for example, child support is calculated on joint income up to $250,000 and alimony is calculated on any excess income, will support be calculated on the entire income in the event of the termination of either support obligation?
  • Are there provisions in your agreement for recalculation of support or do you have to return to court in the event of a loss of employment, illness, increase/decrease in income?
  • What happens if your spouse was carrying you on his health insurance and he/she remarries? Will he/she have any obligation for some or all of your health insurance and, if so, for how long? How is liability for health insurance determined?
  • Are children carried under a parent's health insurance past the age of emancipation to the current federal limit of age 26? If so, who pays?
  • How are uncovered or uninsured child-related health expenses funded?
  • How are child-related extraordinary and extracurricular activities funded? Who determines what activities/lessons and the like are selected for the children?
  • What if one spouse wants a change in the custody arrangement or in the division of parenting time?
  • Have you included terms for funding your children's postsecondary education? Have you been clear on setting a dollar amount on basing parental pledges on an index of a particular school or schools? Have you agreed on parental liability for school with or without a limitation on cost? Does the child have any liability? Will you work together to select appropriate schooling?
  • What happens if either of you dies before the termination of your support obligation or the emancipation of your children? Is there collateral to carry out your agreement?
  • If you own assets jointly after divorce, have you been specific as to the terms for division?

    The list can go on and on. In mediation many of the questions stated above are simply broached and resolve as part of the mediation. As such when you discuss support, be it alimony and/or child support, the mediator should raise future concerns as part of the general discussion. An agreement that set a specific amount for, say, child support and does not consider any of the other costs or events that may require modification of support sum is doing his/her clients a disservice.

    It is clearly the responsibility of the mediator or your attorneys to guide you in the creation of an agreement that is equitable and reasonable now and in the future. No one should be afraid to think ahead, to raise "what if" questions. The danger is not in raising the question or fashioning a response; the very real danger is in the omission of thoughtful present and future considerations that will clarify life for all involved parties.

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