October 11, 2022
Too Loose Divorce Agreement – Worse Than None
It’s almost always better if the divorcing couple can agree on divorce terms rather than let a judge decide. Their agreement can’t, and shouldn’t try to, cover every possibility and it’s understandable that both spouses would want to “get it over with” to save legal expense or avoid immediate conflict or difficult questions. The rationalization is that in the future “we will be able to work it out” or “that will never happen.” The result can be an agreement that is imprecise and useless when it doesn’t have an answer to a situation that should have been anticipated.
Take, for example, a parenting plan that says “summers and holidays will be shared as agreed by the parties from time to time.” Inevitably occasions arise where one parent or the other won’t agree. Now what? The agreement doesn’t help and the noncustodial parent has to go through the expense of going back to court and loss of time with the child that can’t be recouped to get a judge to decide. A detailed agreed-upon schedule would have solved the problem without taking away flexibility for cooperating parents to agree to changes.
Frequently, both spouses are on the mortgage of the family home but only one spouse will end up owning it. The other wants to get off the mortgage because that liability has a significant impact on that person’s ability to finance another home or get other credit, such as credit cards or a car loan. The spouses can’t force the lender to give a release to one of them and the court can’t order it. So the house has to be sold or refinanced to payoff the mortgage. An agreement merely to refinance or sell at some indeterminate time has great potential to blow up and create more acrimony and expense than if the timing were addressed in the divorce settlement agreement. The timing can, and should, accommodate each couple’s particular situation. For example, the house to be sold by a date that the youngest child is expected to graduate high school or when a spouse remarries.
An experienced divorce attorney or mediator can help a couple include the right level of detail in the terms of their agreement. This is an investment that will save untold future time, expense, conflict and stress.
This article first appeared in the October 6, 2022 edition of The Cheshire Citizen.
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