Writing Divorce Settlement Agreements that Stand the Test of Time

Writing good Divorce Settlement Agreements—particularly when children are involved—blends two divergent, yet complementary, styles: (1) great specificity, and (2) an openness that allows for the inevitable changes that families go through as their kids grow up.

When I draft Divorce Settlement Agreements for my clients, I am always thinking about how to write up my clients’ settlement decisions in a manner that will help them stay out of court in the future.  As I have seen over the years, much of the post-divorce litigation is due to poor drafting of the Divorce Settlement Agreement.  That poor drafting is often the result of too much detail about the parties’ current situation and not enough attention being paid to how the Agreement can grow with the family.  Also, many Agreements do not take into account the personalities and habits of the parties, which is essential to making long-lasting Agreements that work.

The ability to write sound Divorce Settlement Agreements that stand the test of time is the result of:

  • Experience – Has your mediator ever been a divorce attorney or at least around the system long enough to know what brings people back to court even after the divorce is over?   Has your mediator been divorced? Divorced with children?
  • Intuition – A good “gut” is essential to working with divorcing couples.  This must be turned on at all times and good mediators do not lump their clients into “categories” or make assumptions about what the clients need.  Open mindedness toward the individuals that you are working with -- and rapt attention to the how the couple’s problems are affecting their children – are key to getting down on paper what the couple actually agrees to as well as how the individuals will most likely interpret the language in the Agreement in the future when the going gets tough (as it inevitably does at some point).
  • Financial & Tax Know-How – Good mediators must be able to help the clients project the probable tax consequences of various settlement options as well as help the clients assess what some of their personal financial realities will be post-divorce.  Good questions—based on a mediator’s experience, knowledge and how the clients are feeling about their situation—will help divorcing parties think through the potential financial implications of settlement proposals being made. Also, a good mediator will have CPA and financial planning referrals, articles, and relevant statutes (divorce law and tax law), in addition to disaster and success stories from past cases, to help the parties assess their options.
  • Knowledge of Children’s, Teenagers’ & College Kids’ Financial Needs – The myriad of costs and expenses in raising children is hair- raising and varies from family-to-family, locale-to-locale.  Often times, in a divorce situation, only one of the parents even has an idea what it costs to keep the kids going.  Mediating with parents who have been living in “two separate worlds” requires knowledge of the facts of what things actually cost and what is “normal” and what is “outside of regular expenses” for the community where the family lives.
  • Knowledge of Children’s Emotional Lives During Divorce – It doesn’t take a PhD in Psychology to see that divorce is not an ideal situation for most children.  The research shows that children of divorce often have problems in forming strong, bonded marital relationships when they grow up.  Knowing this, good mediators try and help their clients find ways to counteract that statistic by helping them find ways to be better parents post-divorce than they even were pre-divorce.  Perhaps the disappearance of the distraction of a bad marriage will allow for richer parenting?  Perhaps the parent who wasn’t so hands-on during the marriage will become more so after divorce?  There are always positive opportunities when there is change and good mediators help their clients be aware of those opportunities. Some of this can be written in the Divorce Settlement Agreement, and some of it is just informative.
  • Knowing that Most People Do Not Change… Much: An understanding of the very personality traits and habits that started the couple towards divorce in the first place is important in a divorce mediation and when drafting the Divorce Settlement Agreement.  That doesn’t mean that a mediator necessarily needs to know the sordid details of a couple’s problems as a couple, but it does mean that strong personality traits and habits of thought and action are important.  For example: “Mr. or Mrs. Fussy” will probably remain that way in perpetuity and the Divorce Settlement Agreement will need to be drafted accordingly -- either super-fussy so that person is satisfied, or, on the contrary, written with less detail so that Mr. or Mrs. Fussy does not get lost in the trees.  It depends on the individuals.  Also, sometimes people truly change, and that is what brings the couple to your office.  If one party has changed, and the other cannot see that change, it is up to the mediator to try and help them get to a place where those changes can be factored into the settlement, if appropriate, considering how that person “used to be”.

Openness in writing Divorce Settlement Agreements does not mean leaving areas wide open for interpretation.  It means leaving enough room in the language of the Agreement to allow parents to continue to function as their children grow up without being boxed into schedules and habits leave no room for their or children’s growth over time. In Virginia, the Courthouse doors are always open for matters involving children.  However, the Courthouse is not the best place to go every time a divorced family experiences growing pains. It’s better to have your Divorce Settlement Agreement written in a manner that allows for change, while at the same time making it clear what is expected of each parent in terms of their rights and obligations.  Not an easy task, but this is the job of anyone in the business of writing Divorce Settlement Agreements and is what sets a good draftsperson aside from a mediocre one.

When in doubt, ask your mediator or lawyer to see a few sample Divorce Settlement Agreements.   It can’t hurt.  Get a feel for whether that Agreement feels like a “form”, or whether it feels like it is a document personalized to the needs of specific clients – both short and long term.

Set your goals.  Be open-minded. Put your kids first.  Choose a mediator or lawyer who knows how to write a good Agreement for the long term.


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