Deciding Now Makes the Path Clear for Later

Jul 14, 2022

On many levels, there is much to decide when you are ending your marriage. In broad terms, you need to come to agreement on the parenting arrangements for your children and on creating a financial settlement that you both find acceptable—relating to the division of assets and debts, and meeting financial needs of two households and the children into the future.

When it comes to parenting arrangements for your children, the plan you create now, involving parenting-time scheduling in particular, may need to shift, based on changes in your work schedules and other factors involving the children’s needs. Therefore, most parenting plans will include provisions for you to renegotiate your parenting arrangements, whether on your own or by returning to mediation, instead of getting the courts involved.

Similarly, in discussing the financial support of children (child support) and of a lower-earning spouse (maintenance) in mediation, a question often arises about how amounts negotiated at the time of divorce can be changed later. While the law provides some ability for financial support to be modified in court if the change of financial circumstances is “substantial,” seeking a court modification can be cumbersome and expensive.

The mediation process allows you to decide, on your own terms, what would be considered an agreed-upon reason for changing the amount of support being paid, and how the amount of the change will be calculated. This will save you the time, effort and cost of filing for modification in court, and provide some certainty over how this often-sensitive topic will be addressed in the future.

Sometimes, when the topic of division of assets and debts is being discussed, one or both of you may want to postpone a decision until later. An example of this would be what happens with a jointly owned home. I have been asked on numerous occasions about postponing a decision on the family home until some future point in time. On the surface, this strategy isn’t consistent with the concept that your divorce agreement (for asset and debt division) is intended to be a “final” settlement. For most assets and debts, it is expected that your settlement agreement will address this once and for all—meaning there is no turning back for renegotiation. As I’ve been told by many attorneys with whom I work, this is what any judge would expect when approving the agreement.

…. Using the example of the family home, the mediation process can offer creative options to address the need for certainty while at the same time providing time and space for a later decision through a well-defined procedure.

However, using the example of the family home, the mediation process can offer creative options to address the need for certainty while at the same time providing time and space for a later decision through a well-defined procedure. Here is one such approach:

  • Spouse A and spouse B continue to jointly own the family home for a specified period of time. (Defining the deadline for ending joint ownership is critical, and in some agreements, spouse A or spouse B may be given the option to provide early notice for termination of joint ownership.)
  • When the deadline for joint ownership is reached, spouse A has the option of buying out spouse B’s equity in the family home. (In some agreements, either of you may have that option, in which case it should be decided which of you has the first option.) This provision would also address the terms of the buy out.
  • If neither of you wants to buy out the other’s interest in the family home, it would be sold.

While no decision about the ownership of the family home is made at the time of the divorce, what is described above is a complete plan for how the equity will be divided at a specific time in the future.