The Details

By Brenda L. Storey, Esq.

As parties settle their action, or the court issues its ruling, “little” details should not be ignored.   This is, in my opinion, the greatest weakness in using state forms to capture the terms of resolution.   General terms are good, but the specifics to address enforcement is better.

As one example, the parties agree that a spouse will receive the marital home as part of the property division.   If the mortgage is in joint names, specific terms need to be included as to whether refinance will be required, with a deadline, and what happens if the refinance is not accomplished by then.  One avenue is to have the house listed for sale, but all the terms of the future potential sale need to be addressed at the time of the initial action.  As such, selection of the realtor and listing price should be included.   Specifics as to when to drop the listing price and whether to accept an offer less than listing price, similarly, should be defined.   Absent these details, the parties could be in litigation again in the future just to enforce what was previously thought to be resolved.

Security for maintenance and child support is also one that requires specifics.    If God forbid the payor/former spouse dies before child support and/or maintenance responsibility has terminated,  the payee needs to be protected.   Therefore, as the judge issues its support orders, life insurance should also be sought.   The terms need to include specific amount, beneficiary designation, proof and timing of proof, and whether the security amount can be reduced at specific intervals.

The more specifics the parenting plan has, the less likely there will be room for disagreement.   For example, the specific days, times, and locations for all exchanges should be included.  The potential decisions covered by shared decision-making should be defined, such as whether tattoos and body piercings are within  that category.  Phone calls from the children to the parent who does not have parenting time, and ones initiated by that parent to the children, should be addressed, to insure whether that contact can occur.  If the parties reach an impasse as to a decision, the means to resolve that impasse should be specified.

Orders, or agreements, are only binding upon the parties, and not third parties.   As such, terms need to be included to best address situations in which third parties are involved.   For example, credit card companies are not bound by orders between parties for responsibility.  So, indemnification and hold harmless language is good to include.   Schools are not subject to court orders between parents; therefore, access to records, participation terms, and limitations on contact need to be addressed with the onus on the parents.

These kinds of details are but one reason to have solid representation in a divorce.  Even judges, tasked with making final rulings and approving submitted agreements, do not alone catch all the details that are needed to best move the parties forward post-action.   The missed details are often what causes disagreement, and future litigation.