Months, even years, of haggling anxiety were finally at an end – the judge had accepted their Separation Agreement, granting their petition for divorce. A new beginning was in the offering. Yet the initial relief, tinged as it might be with sadness, may 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, labeled here as Group One, their agreements 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 dissention resulted from the lack of precise agreements on:
The second group of couples, labeled here as Group 2, 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.
We also believe that agreements should be built on the anticipation that unpredictable changes may well occur. And, due to this belief, a thorough and thoughtful agreement considers vehicles to resolve differences when they occur – vehicles which are usable and affordable. The good news is that it may not be too late. Even post-divorce couples engaged in conflict can use mediation services not only to resolve a particular dispute, but also to create a process to manage future disagreements.
As post-divorce families embark on their new lives, we suggest that their divorce agreements should provide them with a readable road map for the future, a map that will allow them to handle change without reliving the anxieties of their divorce and at a cost that is, in and of itself, too high – emotionally and financially.
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