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Not all Separation Agreements are created equal.

Today, I had the opportunity to review the Separation Agreement and Property Settlement Contract of a couple. I was asked to review the Agreement because, after less than one year of life working with it, a series of issues had arisen and the Agreement seemed not to address how to handle them.

Unfortunately, the client was right. While there was a whole page dedicated to what would happen if the couple reconciled, there was nothing, absolutely nothing, regarding how extraordinary costs of the two minor children would be addressed. No reference to or provision for modifications to the rather draconian visitation schedule despite the fact that as the kids get older, the current schedule will prohibit them from participating in just about any after-school activity. What there was was a whole bunch of ambiguity regarding the welfare and best interests of the children.

People don’t generally separate and divorce if they are communicating well, share common beliefs and have a similar approach to raising their children. Why then would you want to leave open to individual parental interpretation life altering decisions and behaviors if the parents can’t find common ground on the most basic of issues?

The Separation Agreement and Property Settlement Contract is a road map for life after separation and divorce. If developed and written correctly, the Agreement should anticipate issues and, while the spouses are communicating, formalize responses and resolution. Yes, a Separation Agreement is the memorialization of a transaction, the separation, but if that is the driving function, it will fail as a resource and, more importantly, as a touchstone for ensuring the protection of your individual interests and those of your children, family and loved ones.

When I work with a client, I use a 14-page issue primer that helps all of us to think about how the couple and children will interact after separation and divorce. All those pages and potential issues can be overwhelming but that tool can also make for some of the most livable and lasting Agreements.

What will happen if your 13-year old needs braces? Most orthodontia is not covered by traditional medical insurance plans. Who will pay the several thousand dollars? How will the child get to the weekly appointments?

Who will be responsible for the family pet(s)? Will there be a sharing of food costs? Vet bills?

Who will pay for your daughter’s wedding? Will you be able to bring your new husband as a guest?

Sure, some issues won’t be relevant now or later but, more often than I care to report, Agreements are so sparse that they don’t even address the most obvious issues.

Why is that? Part of the answer lies in the traditional approach to separation and divorce. We have become so used to Courts and other third-parties having answers that we shirk the opportunity to fashion the plan that is best for the family. Second, the traditional adversarial approach to separation and divorce is draining, emotionally and financially. Unfortunately, instead of dialogue, it breeds a war of attrition where the parties chief goal becomes to get it over with as opposed to working through all of the pertinent issues. More issues = more time = more money = more stress. It’s a vicious circle that, unfortunately, creates some of the worst Agreements out there.

Third, many practitioners take a legal-centric approach. That is, the focus is on protecting or ensuring certain legal standing often with little regard for the practical, emotional and even physical realities of separation and divorce.

When the emphasis is not on gearing up for battle but, instead, on building a foundation for the future relationship between a family unit, the resulting document can actually draw disparate spouses together as opposed to driving them further apart.

So, what does a better Agreement look like? It depends. Some are long, like 14 or 16 legal-sized pages. Others are much shorter but are still effective because they address all of the known and anticipated issues. Page count is not as important as consideration and diligence. If you’ve used a structured process, customized to your particular situation and you’ve had good communications between the spouses, the chances of producing a valuable and worthy Agreement rise exponentially.

Don’t settle for any Agreement. You and your family deserve better.

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