Measure Twice Cut Once: Why You Actually Might Need a Divorce Lawyer

Part One in a series on divorce and family law by Smith Lee Nebenzahl lawyer Beth M. Nussbaum

Perhaps you and your spouse want a do-it-yourself divorce without wasting your soon to be divided assets on lawyers.  You agree to share everything equally, from money and assets to responsibility for your children's expenses, and you may have heard horror stories from friends and family about mounting legal bills and lawyers unnecessarily complicating a divorce.  Those stories are important cautionary tales, and should cause you to be careful in your choice of a divorce lawyer.  Unfortunately, however, the reality is that what seems simple in concept can become immensely complex in reality, particularly as years go by, when both spouses move on with their lives and circumstances change. One example of where the right divorce lawyer can help save you greater expense and headaches in the long run is the separation agreement.

Let's say you and your spouse actually really agree about equal division of property and responsibility for children.  The court will require you then to submit a separation agreement, sometimes called a divorce agreement, which typically includes arrangements for the division of real and personal property and assets, alimony, and various other items such as health and life insurance, retirement funds, trusts, debts, liabilities, taxes, living situation, inheritance, and/or recognizes and incorporates a premarital agreement, otherwise known as a prenuptial agreement, if applicable. Where children are involved, a separation agreement also addresses child custody, parenting plan, child support, and education, among other issues.  That list alone should signal that even in an amicable, uncontested divorce, there are pitfalls to be wary of, and a poorly drafted separation agreement can lead to expensive legal disputes in the future. 

Consider the following scenarios:

1. A separation agreement generally states its “intent” that after divorce, the parties will equally share costs for the children’s and parents’ medical and dental insurance. In its numbered parts, however, the agreement states that the husband will cover the wife and children’s insurance but that if there is an extra cost to insure the wife, that she must pay such cost herself.  Elsewhere the agreement states that the parties are responsible for their own uninsured costs.
2. A separation agreement states that after divorce, the parties will provide the children with health insurance and child support, including for post-secondary education, until the children reach “emancipation,” and the agreement provides for the sharing of college tuition and “incidental costs.”

At the time these agreements were signed, the parties presumably had a shared understanding and agreement about how the agreements were supposed to work, doubtless informed by their understanding of the circumstances at the time they signed them.  Fast forward several years, however, and changed circumstances may make the application of their provisions hotly disputed.

Agreement Number One is problematic in two ways:  first, the separation agreement’s “intent” that the parties equally share costs is in direct conflict with its actual numbered provisions, which specify that the parties shoulder their individual costs.  Second, the agreement does not provide for a change in scenario, such as if the husband changes employment and no longer insures the children.  A better crafted separation agreement would address the probability that the parties’ insurance situation might well change, likely would contain gender neutral language that would anticipate such change, and any statement of intent would be consistent with the agreement’s numbered provisions.
 
Agreement Number Two does not define “emancipation.”   Is it 18, 21, or 23 years old?  If defined by statute, is it the statute effective at the date of the agreement or when a party seeks court intervention with regard to enforcement or modification?  Also, current health insurance rules provide for coverage of children up to the age of 26 by their parents’ policy.  Is there or should there be a different age of “emancipation” for health insurance than for other child support purposes?

Agreement Number Two also fails to place any parameters on what constitutes post-secondary “incidental costs?”  Do such costs include room and board alone?  Books?  Computer?  What about a microwave, television, sports equipment, car, plane tickets, or any of the other items college students may need?  Does one parent have unlimited authority to approve an "incidental cost" and send the other parent a bill for half the cost, even if it is a discretionary expense that the non-deciding parent would not have approved on his or her own dime?

A cursory separation agreement simply cannot account for all of the details or post-divorce changes in situation that can trip up application of the agreement.  As a result parties must often expend substantial, unnecessary legal costs down the road on lawyers trying to correct poorly drafted separation agreements through complaints for contempt or for modification.  Importantly, where the agreements were drafted at a time when the parties believed they agreed on their basic terms, the subsequent disputes often arise when one or the other parent/spouse is in a significantly different set of circumstances and prepared to fight. 

Can you anticipate every possible scenario?  Of course not.  But a good divorce lawyer can help you anticipate potential life changes that could affect the operation of the agreement, guided by the experience of issues that have caused post-divorce disputes for other couples, and help ensure that the agreement you sign anticipates what can be anticipated and provides clear and consistent principles for what cannot. 

Beth M. Nussbaum
http://www.slnlaw.com/Family_Law.html