Topic 10: Important for Everyone

Posted on June 8, 2010 by Nancy Van Tine

Hi there,

In most divorce agreements there are a number of standard provisions (often called "boilerplate").

The most important of these provisions are:

1. The ability of the parties to have separate wills - this covers the right of both parties to exclude the other from their estate plans

2. Waiver of future claims - this generally says that except as written in the agreement neither party has any claim against the other.

3. Personal freedom to live your own life - this is not a restraining order but it is put into all agreements.  I think it may stem back to the days when women were treated like property and needed a recitation of their ability to live on their own.

4. Completeness of this agreement - this basically says the agreement is the agreement and side deals do NOT count; so, if your soon-to-be-ex promises you something, but says he won't put it in the agreement and to just "trust me" - don't.

Then there should be a provision about how to handle future disputes.  Are you going to require trying to mediate first?  Or are you going to simply say that the court is where future problems are worked out.  Maybe you have a parenting coordinator or an arbitrator to divide personal property.

If you wish, this is the point where you can resume your maiden name.

And finally the magic words: "status of the agreement"

Agreements are always final once approved by the Court as to property division, and always open regarding child-related issues, such as custody or support, and education

However there is a choice regarding alimony, health insurance and life insurance for a former spouse.  These provisions can be:

a. Merged into the judgment (more flexible), or
b. Survive as an independent contract (more rigid)

If the provisions are merged in the contract the court can change them (in a whole new lawsuit) if it finds that there has been a material and substantial change in circumstances.  This can be as broad as a new job, a cut or increase in pay, or as catastrophic as a major illness.

The survived agreement standard is a much higher standard.  In order to change a provision that survives, the court will have to find that there are "countervailing equities," which basically means the change is catastrophic, i.e. not only a job loss, but no assets left to pay support, or the party seeking an increase in support is about to become a public charge before they will change the contract.

You should always have the agreement reviewed by an attorney, as the devil is in the details.

Best,

Nancy
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First and foremost, if you have them: The Kids

Posted on January 14, 2010 by Nancy Van Tine

Hi there,

Here is the first topic in the series: Top 10 Topics to Consider When Getting Divorced.

If you have kids who aren't grown up, then this can be the most difficult area to navigate.  You will want to consider all of the topics in A and B below, and you may need to consider the topics in C, D and E as well.

A.  Legal custody, joint vs. sole, what legal custody means; who makes major decisions such as health, religion, education, moral development; and/or emergency decisions?

Most folks end up with joint legal custody, which actually is presumed to be the default format in Massachusetts.  Joint legal custody means that the parents need to communicate, and hopefully agree on the major decisions listed above.  This can be very hard in a high conflict situation, and impossible in a situation involving violence, mental health or substance abuse issues.  In fact, the state is asking people who are getting divorced because they can't communicate, to continue to communicate about their children.

I have the utmost respect for those who manage sometimes after the divorce is done, to step back, take themselves out of the equation and do what is best for the kids.  I have some prior posts about holiday scheduling that may be useful.  Sometimes, parents can't do it themselves and a Parent Coordinator is necessary.

B.  Your parenting plan: where do the kids live?; when does the other parent see them (vacations holidays, etc)?; who does the driving for pick-ups and drop-offs?

This is often the most difficult piece to determine, as frequently both parents want to be the "primary parent".  Parenting plans can range from true shared, equal custody, to a more traditional - every other weekend and a couple of evenings during the week format.  If you can't agree the Court will decide, with the standard being "the best interest of the children," which usually translates to what the reality has been in the past - who the true primary caretaker has been.  In custody litigation the Court usually appoints a Guardian ad Litem to help determine what the parenting situation is, has been and should be.


C.  Removal or moving within the state.

Generally you have the right to move anywhere within the state; however, moving from Berkshire County to Nantucket can place real obstacles in parenting, and sometimes Courts have prevented it.  Moving outside the state, even from Attleboro to Woonsocket requires either an agreement of both parents or the approval of the court.  This can be a whole new legal action and can consume as much emotional energy, as well as legal fees, as a custody case.
 

D. Temporary incompetence of one parent.

What happens after the divorce when one parent is unable to care for the kids, generally due to mental illness, substance issues or incarceration? Most often there will be a temporary transfer of physical custody to the other parent, this can happen by the agreement of both parents, or through court intervention. Problems arise when the impaired or ill parent is better (or not) and wants the kids back. This can trigger a whole new custody action. These circumstances also often involve the state's Department of Children and Families.


E.  Relationship with other relatives.

Grandparents have rights too!  And so do parents against Grandparents.  Usually grandparents see their grandchildren when their child has them; however, in some instances grandparents can ask for their own time with their grandchildren.  Conversely, grandparents can be excluded from seeing the kids as well.

 

I realized as I wrote this that this is just the tip of the iceberg here, I could go on and on... I hope it helped.

Best,

Nancy
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