Tip #11: When It Comes ToDivorce, There Is No Such Thing As "Final"

The Final Decree Isn't Final...

The decree is signed, and everyone goes in separate directions. Finally, the case is over. Not quite.

Both of you must continue to have contact through economic transactions, support payments, child custody and visitation. And things change after the divorce: One or both of you remarry, interjecting new personalities into the situation. One or both of you move. One needs more money. The other can't afford the payments. One makes more money and is asked to increase the payments. The other becomes ill and can't make payments at all. One of you files bankruptcy. And it goes on.

Statistics tell us that one or both of you will want changes made in the agreement or court order. To solve an ambiguity in your papers. Something comes up that no one expected. Then what happens? Generally, the whole process starts over again: Accusations are made. Expenses are inspected. Assets are reappraised. A new spouse's income and assets are looked into. You are thrown back into the judicial system. There are depositions, court proceedings, lawyers, fees, and expenses all over again. And lives are disrupted again.

YOU MUST EXPECT AND BEGIN TO PLAN NOW FOR CHANGES IN WHAT YOU BOTH THOUGHT WAS SUPPOSED TO BE A "FINAL SETTLEMENT".

No lawyer can prepare or negotiate the perfect agreement that will never be modified or will not be subject to two interpretations. As long as people change and circumstances change, there will be the necessity of modifying your documents.

Child support payments are always subject to being changed either increased or decreased if there are significant changes in the financial circumstances of either parent. Alimony payments may or may not be modified, dependent on how the agreement or court order is worded. Custody and visitation are always open to change if the best interests of the children would be served by change. Property settlements are generally not subject to change...but can be discharged in bankruptcy.

You can't stop change. So you might want to discuss with your lawyer alternatives that may help when modification arises:

Penalty clauses: If one of you brings an action that is determined by the court to be frivolous or results in less than what is asked for, the party who causes the litigation will be required to pay all expenses and attorneys' fees.

Incentive clauses: Rather than litigate each time a financial change occurs, set up a disclosure system whereby, for example, if a non working spouse begins working, rather than litigate how much alimony should be reduced, alimony by a fixed sum based upon each dollar earned, for example, 25 cents. An example, if alimony is set at $500 per month for an unemployed spouse and that person begins working and earns $1000 per month, then alimony would be reduced by $250 per month.

You also might want to discuss alternatives to litigation. Both of you can agree to take many of your disputes out of the court system. This doesn't mean that you don't need lawyers. It simply means that you can agree on the methods and procedures by which disputes can be resolved in less time and in private.

A mediation clause in your agreement can provide both of you with a non adversarial atmosphere where you are in charge of what is happening to you. You and your ex may be able to construct your own agreement, one you both can live with. If not, since mediation is not binding, you can always choose to go to court.

An arbitration clause in your agreement can provide a binding way in which to avoid the court system when disputes arise that cannot be resolved through agreements.

In any case, before you agree to anything, discuss the pro's and con's with your lawyer.