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There are many different options for resolving matters between spouses when they are parting ways.
Some people choose to work with lawyers, some with mediators, and others try their own hand at building an agreement.
Working together to negotiate a mutually beneficial agreement can be empowering, and result in cost savings. However, it is important for both spouses to feel fully informed about what they are agreeing to.
If you are negotiating with your spouse, it is helpful to get a lawyer’s opinion on what you are agreeing to – you might want to proceed, even if a lawyer says they could get you a different deal.
Here are some things to know on this hybrid, do-it-yourself while receiving sound legal advice, journey toward building a sustainable separation agreement.
The Three Pillars of Family Law
When you are negotiating a separation agreement, there are three primary pillars of family law to consider:
- Property Division,
- Financial Support, and;
- Parenting.
If you and your spouse do not have property, there is no claim for financial support, and there are no children, the separation agreement can likely be very simple, documenting the date you ended the relationship and any other terms needed.
Property
If you have property, it is helpful for you both to have full disclosure about the value of the properties held individually or jointly, as well as any debts, either secured against the property or unsecured and in joint names. Individual debt may also be something you want to negotiate, especially if that individual debt was accessed to the benefit of the spousal relationship. For example, if one party took out a line of credit for renovations to the family home.
Many lawyers will suggest that all property should be divided equally and equitably. For some spouses, this is appropriate and in line with what they both expect and want coming out of the relationship. For others, they might decide that there should be an unequal division of property. There might be many reasons why spouses decide between themselves that this is what they want to do – folks are allowed to make these types of agreements; however, it is important to understand your legal entitlements and have full disclosure related to the property. If you are feeling uncertain, be honest and open with the other party, and you can both seek answers together. You are not being difficult; you are protecting both yourself and the other party from future disputes if you carefully and thoughtfully consider the agreement you are building related to your separation.
Financial Support
If you have a child with your spouse, one or both of you may be required to pay child support, depending on the age and needs of your child or children, and your parenting arrangement. Child support is the right of the child, so if you are making an agreement that contemplates no child support, it is a significant and impactful decision that may affect other legal aspects of your separation or divorce (if you are legally married). Most lawyers, if they see an agreement contemplating no child support, will flag this and encourage you to reconsider. Some folks may have agreed to no child support because their incomes are the same or similar, and they have shared parenting time; others might agree to this because of an unequal property division. Whatever the reason, it is important to have the applicable legal information, and it can be helpful to consult with a lawyer if you are curious about the legal implications of agreeing to no child support.
Another aspect of financial support is spousal support. Spousal support entitlement is based on many different factors and can be a complex and sensitive topic in negotiating a separation agreement. If there might be a spousal support entitlement and you or the other party is considering waiving spousal support, it may be important to seek the relevant legal information out, and you might even want to receive independent legal advice. If you make an agreement waiving spousal support, and later on realize that you need that to move forward with your life, it might be difficult to try to re-negotiate. Whenever you are making significant financial or property decisions, being methodical, careful, and conscientious can save costly legal disputes in the future.
Parenting
If you have children, parenting is likely one of the most important topics you will negotiate. Parenting agreements should be crafted in the best interest of the child, and not only in accordance with what the parents want. Further, parenting agreements directly impact the need for financial support and might even be a major contributing factor when negotiating property division.
The things you likely need to negotiate with the other party regarding parenting may include:
- Where the child or children will live,
- What activities will they be involved in,
- How extra and extraordinary expenses will be paid,
- Who will be the payor and recipient of child support, and what amount is appropriate, and;
- Who will have decision-making responsibility.
It is common for parents to try as much as possible to have equal parenting time with their children; however, sometimes the family system requires a different arrangement. It is important to think about the unique structure of your family and what will work best for the children, and not just agree to what is typical.
Many co-parents struggle with how to determine what activities the children will be involved in and how contributions to those and other extra and extraordinary expenses will be paid. It is helpful to build strategies early in a co-parenting relationship for how those decisions will be made, as you may be co-parenting for many years into the future.
There are free child support calculators online. These helpful tools can help give you guidance on which parent will be paying (sometimes it’s both!), and what amount is in line with the child support table.
Often, co-parents are encouraged to have shared or joint decision-making; that is a wonderful goal, however, just like how equal parenting time is not always possible, sometimes shared or joint decision-making is not possible or practical given the circumstances. These conversations can sometimes become heated, as most parents do want equal say in their children’s lives. If you are struggling with this aspect of a negotiation, you may want to consider mediation, as it can help bridge the gap between where you’re at and where you want to be.
Next Steps
If you think you and your former spouse have an agreement you have reached through a kitchen table negotiation, a helpful next step is to meet with a lawyer. If you are meeting with a lawyer together, it is important to know that it is likely that the lawyer is not representing either you or your former spouse. Rather, that lawyer is providing you with guidance related to the legal implications of the agreement you and your former partner have prepared. They are not trying to untangle what you have negotiated; they are merely trying to alert you of the gaps you may have overlooked.
After meeting with a lawyer regarding your kitchen table negotiated agreement, if you have further questions or concerns or you are starting to feel uncertain about the agreements you have made, be open, honest and direct. The earlier you can build understanding between you and your former spouse related to any uncertainties about the agreements you have made, the better your chances are of avoiding costly legal disputes and dissipating the important resources you have both worked hard for.
If you want help negotiating your separation agreement, contact our office today to work with one of our talented mediators.
If you think you’re finished negotiating your separation agreement, chat with your former spouse about seeking independent legal advice or guidance from a lawyer regarding your agreement – if you want to go see a lawyer together, keep in mind that that lawyer may suggest you both retain counsel separately – lawyers can work together collaboratively to get you to a mutually beneficial and sustainable agreement that is in line with the law. Just because both parties have lawyers, doesn’t mean it has to be a fight!
Contact us today for more information about mediation and the Collaborative Law process:
306-975-7151
Further Resources
Separating or Getting a Divorce
What Should Be in an Agreement – Family Law
Fact Sheet – Parenting arrangements after separation or divorce
