As a mediator and collaborative lawyer, I attract clients whose main priority is to come to an amicable agreement. What I want them to understand is that an amicable agreement does not equal a vague agreement. We need to balance the desire for an amicable divorce negotiation with the need to create an agreement that will allow the couple to live amicably long after the divorce is finalized.
Divorce agreements are living documents; my clients are going to keep it alive by turning to it for answers, well into the foreseeable future. A good agreement is therefore a durable agreement.
Tension arises between the mediator’s or lawyer’s desire to make sure the agreement addresses all the details it needs to address to reduce future conflict, while not “over-lawyering” and making things too difficult for the clients during the negotiations. There often develops real, palpable pressure from the client to wrap things up quickly. Divorcing clients are under great stress and, understandably, they are more focused on the big-picture items of the agreement (dividing the assets, the day-to-day parenting schedule, paying all the bills) and can get frustrated and anxious when we need to discuss the details of how everything will work now and in the future.
In order to accomplish our shared goal—divorce without destroying the family—we must address the more granular points of the agreement. As these stories show, the devil is in the details:
- A couple decides that one person will live in the marital residence until after their children have graduated high school, and then the residence will be sold and the proceeds divided. However, the agreement does not address the important detail of how they will set a listing price for the home. If the person living in the home is not motivated to sell, he or she can use this fact to delay the sale.
- A divorced couple agrees on a 50/50 parenting plan when both are living within 15 minutes of each other. One parent remarries and moves to a location that is an additional 30 minutes away. The other parent feels forcing their young children to spend 45 minutes commuting to and from school is too hard on them. An important detail that should have been discussed during their negotiations is “what if” a parent decides to move from their current home? How far is too far for a 50/50 parenting plan to work?
- Clients are rarely enthusiastic to think about who gets which holidays with the children. Many claim they will be able to work it out each year and don’t need to address this issue in the agreement. What they often don’t plan on is that people will get married, and new families will be formed along the way—all with new scheduling demands. I always recommend that my clients discuss and commit to a holiday schedule, so it’s there if they need it, and they can always choose to ignore it if both parties agree.
During the mediation and collaborative processes, clients may feel like probing questions from their mediator or attorney is pushing them to create conflict. What we’re actually trying to do is prevent conflict in the future. Why spend significant time and money negotiating an agreement if you’re not going to cover most of the things that we can anticipate coming up?
To make sure you’re amicably addressing all the details that will provide you with a durable agreement, contact us today.
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New York, NY 10022