April 28th 2017 • 0 CommentsBack To Blog
A marital separation agreement is the most essential contract in a no-fault divorce. The parenting plan portion addresses how you will co-parent with your ex-spouse in its entirety, and thus can also serve as the basis for many disagreements if not drafted carefully. To demonstrate a point, in sole custody one parent has ultimate authority in decision making. Thus, the opportunity for conflict without legal intervention is virtually nonexistent. In joint custody, both parents have to agree on the upbringing of a child and involve each other of important decisions. In practice it is unlikely that both parents will be able to make decisions jointly for every issue that arises, and it is simply impractical. Thus, your parenting plan is critical in detailing what decisions must require concurrence from both parents, and how to handle this if one parent is not accessible.
As I stated in my blog “Untying the Knot” you will absolutely want to have each party consult with an attorney regarding this agreement. There are various ways this agreement could be drafted; one attorney might take a lead drafting the document and then each attorney will subsequently review, advise and negotiate on your behalf. You can create your own draft with state-specific templates that are often available for a small price, and then provide this to an attorney. In some instances mediators may provide this service. Do note, a mediator is not an attorney and while they may be very experienced they do not represent an individual. Attorneys, to the contrary can only represent an individual. While mediators can be highly effective, I still advocate using an attorney to review the separation agreement by each party.
Even if your attorney is the best attorney in the region, they cannot possibly predict all future conflict between you and your co-parent. They do not know your values, they do not know how your child will mature and they cannot predict the future as to what potential problems might arise. To that point, neither can you. If your child is young there is a good chance you will have many unforeseen events and these are all opportunities for conflict. Your attorney is also likely to have less experience in joint custody agreements than in any other type of custody arrangement.
Why? According to research by Maria Cancian, Ph.D. and Daniel Meyer, Ph.D., joint custody is still relatively new in the US. Their research shows that shared custody orders in 1998 were roughly 14% of all divorces. In 2008, they performed follow-up research that indicated 45% of all divorces decreed shared custody. While that is no doubt a significant jump, joint custody is still relatively new. I’m not attacking the legal system at all. This is simply a matter of numbers and statistics. Being a newer cultural shift, attorneys have yet to experience the wide range of conflicts and pitfalls that might arise in a joint custody agreement. Additionally, many legal proceedings involve the use of case law where attorneys cite decisions in past cases to support their own argument. Lawyers study and learn from case law forming a basis for them to advise and guide their clients. For that reason, there is plenty of territory that remains undiscovered.
Now that I have sufficiently convinced you of the importance of this agreement, let us go into detail on exactly what it entails and some important considerations. Let us take a look at the topics that are almost universally covered in a marital separation agreement:
In addition to the above, parties can contractually agree to just about anything in their separation agreement as they are entering into a mutual and voluntary contract. Disposition of pets (which are considered property) and items that might be unique to a given case are all fair game.
A note on child support: in most jurisdictions you cannot enter a contract that removes the obligation of child support by a parent. You should try to voluntarily agree to a fair agreement, just keep in mind that it will be subject to alteration. If your agreement is particularly unbalanced you will need to have a good argument as to why this suits the child’s best interest. So, if you think you want to let your ex keep the house as a lump sum child support payment in hopes of being released of any future obligation, think again. Your ex could come back a year later and decide to pursue regular support payments and if the judge does not agree with your approach you might not like the outcome.
Now that we have discussed the basic content and limitations of a separation agreement, I would like to discuss considerations that can help you in avoiding ambiguity and allow you to think through potential pitfalls. These come from either personal experience, or experiences others have shared with me over time.
You should think about every nuance that you could encounter in the upbringing of your child, including developmental stages and changes that will be needed for each. Think about this as it applies to your typical schedule both on a weekly level as well as a seasonal and yearly level. How do you want to handle holidays? How specific are you about the parenting schedule? How do we deal with conflict down the road? Being more specific is usually better.
For instance, if you have a typical “week on” – “week off” child custody schedule where your child spends 7 consecutive days with you on an alternating basis you might write in an agreement “the parties shall spend one week with one parent starting on Friday after school or day care ending with a drop off at school or day care on the following Friday”. Think about this for a moment. Who has the right or responsibility for parenting time from Friday morning drop off at school to Friday afternoon pick up after school? What if the child is sick and one parent has to stay home, who has the default responsibility? Or, what if you want to take a three-day weekend and leave Friday morning on the week your child returns to you? Seems like your co-parent schedule has ended so why not? But the agreement says your schedule has not yet started. Better to recommend only one specific time that the change of responsibility occurs.
What happens during summer or school holidays when there is no school or work-related care? On that note, do you think you want to be bound by the same schedule as your child ages? Maybe at a younger age you want to have less days apart between your child and allow this period to increase as your child ages. You might consider putting in check points that require both parents re-assess the parenting schedule as your child matures, and what to do when an agreement cannot be reached. Otherwise a stalemate based on other disagreement might prevent you from making any type of modification to your agreement.
Other things you need to consider are holidays. Do you have specific holiday traditions? While you might be hell-bent on exchanging your child every year at noon on Christmasdo you really want this? Do you travel on Christmas to see family for the entire day or overnight? This will change your availability to do so until your child is emancipated. As a divorced parent, this is a good time to consider how you will have to start celebrating your holidays differently. You might “observe” any given holiday on a different day so make sure you think through these items. Include in this birthdays of both you and your children.
Other areas of contention usually include activities and expenditures such as work-related child care, summer camps and large expenses. Assuming your child is young enough to need it, consider that you should absolutely include a date or age wherein you feel child care is no longer necessary. Believe it or not, there are very few actual laws that define the acceptable age for a child to be left unattended, so try to come up with a reasonable agreement between parties here. Rely upon a judge and you’re likely to get a very conservative answer.
Do you agree to share medical expenses? Dental? How do you adjudicate when they are necessary? One parent may wish to have cosmetic surgery performed and enforce that the other parent pay a share based on the agreement.
For activities, you may both agree today that your child is a budding Olympic gymnast and agree to pay for all “extra-curricular” activities in an agreement. In two years from now your child might not be as into this sport, yet one of you might disagree and wish for the child to continue.
Are there particular social, religious or cultural issues that you want to include in your agreement? Perhaps you and your ex were of differing religious beliefs and thus you never pursued a religious upbringing for your child. Now that you are divorced one parent might decide it is now within their right and means to pursue a religious upbringing. Best to require something this significant if you feel strongly one way or the other.
Do you not desire that your child goes to an overnight summer camp? Do you want to prohibit your child from engaging in coed overnight visits? You can see where this is headed - it is very difficult to draw a boundary for everything, but if you fail to address the issue now, you will not have any success enforcing a disagreement later. If you disagreed on parenting strategies and principles while married it is going to get more challenging when you are divorced. You may want to get your divorce over with and not slow down the momentum, but I can assure you that especially if your child is younger you will be living with this agreement for many years.
What if one of you relocates for a job? If you have shared physical custody now, that may no longer be possible. Even a relocation across town could change a school boundary and you will usually choose one parent as the primary address for school registration purposes.
Lastly you will want to decide who gets to claim your children on their tax return. This could be on an alternating basis or a permanent basis. Be sure this is included. Do note, however that there are specific implications set forth by the IRS on whether you are eligible to claim a child as a dependent so make sure that this is considered.
When it comes to asset, liability and real property division this is really up to you. Courts will be happy to make this decision for you of course but since this is a divorced parenting blog I will leave the detail aside. You do want to make sure you are organized and have documentation of all joint property, joint debts, joint bank accounts and any assets that were acquired after you were married. Even if you disagree on how these will be divided you at least need to have an inventory as a starting point.
While developing a separation agreement can be daunting, it is absolutely vital to be as comprehensive and specific as possible. Even so, you may still find issues down the road as it is nearly impossible to cover every potential circumstance. Thus, you should at least sit down and draft your important parenting values, the commitments and priorities you want for you child and consideration for how these might change as your child hits different maturity levels. In situations involving joint custody, you cannot realistically expect a lawyer to be able to handle this without a significant investment of your time and input. Hopefully some of these lessons learned can helpful. As always, I welcome your feedback including any experiences you might also wish to share.