April 1, 2017
Written by Lynne C. Halem
Months, even years, of haggling and anxiety were finally at an end. The judge had accepted their Separation Agreement, granting their petition for divorce. A new beginning was in the offing…
Yet the initial relief, tinged as it may be with sadness, might well be short-lived. Divorced couples are often faced with agreements that do little to help them navigate an evolving, and even rocky, future. We all know that tomorrow is unpredictable, but unresolved or changed circumstances pose greater hardships for divorced couples than for married ones, if for no other reason than a failure to reach an agreement may lead to costly and unsettling legal intervention.
At the Centre for Mediation & Dispute Resolution, we have reviewed our post-divorce mediations in an effort to discover if conflicts after divorce could be prevented, or at least reduced. We identified two different primary causations underlying post-divorce conflict:
For some couples, let’s call them “Group A”, their divorce agreement simply did not address future events. Individuals described legal negotiations as drawn out and painful, beset by emotional conflicts and accusations. The need for closure took center stage over the actual terms of the agreement. The end product focused on the key elements of who got what (property settlement) and who paid what to whom (support). The details of their agreements were conspicuously absent. Even the terms of the custodial arrangement were notably sparse. Embroiled in conflict and worn down by a long and costly process created little interest in pursuing, what at the time seemed minutiae. “Don’t worry,” the couple was assured by counsel, “If problems arise, you can return to court.” And predictably, return they did. Couples in this group experienced problems galore.
While the list of their conflicts is long, the key areas of future dissension resulted from the lack of precise agreements on:
The second group of couples, labeled here as “Group B,” got into trouble over unanticipated changes in circumstances. These couples had agreements that included more detail but fell short in anticipating changed events. Agreements were drafted either as if change would not or could not occur or with the court positioned as the vehicle for handling the unpredictable future. Why worry about tomorrow, the Separation Agreement implied; problems may never arise. And, of course, while this statement is accurate, it is also short-sighted. At the least, one needs to question why agreements did not contain a process or processes for dealing with the uncertainties of tomorrow. If change does not arise, if conflicts are avoided, no loss has been experienced. But if problems do emerge, the couple is not left with no resolution route except the court house.
At the Centre for Mediation & Dispute Resolution, we believe the old adage: “The devil lies in the detail.” To us, an agreement which is clear and specific as to beginning points and ends, as to the details of property, support, and the children, including education, death, and taxes, provides insurance for protecting couples from the surprises of tomorrow.
The good news is, it may not be too late. Increasingly couples who litigated their divorce or who had difficult, long drawn-out legal interactions are looking for another avenue; a more benign, more cost-effective method for tacking post-divorce issues. This population, who never even considered mediation as an option for their divorce is now approaching mediation as a better route for silencing the arguments and calming the tensions.
Please Call Our Office For Answers To Your Questions – 781.239.1600
