In mediation, there’s an overall assumption that both parties are reasonable and are willing to work together to reach an agreement. In addition, it is not uncommon for at least one of the spouses to be anxious to get through the mediation in order to put the divorce behind him or her. This can sometimes lead spouses to assume that some that details of the mediation agreement do not require a high level of attention, or that if something important comes up later they will be able to discuss it with their ex spouse and come to a reasonable arrangement. Unfortunately, these assumptions can lead to the more common missteps in a divorce mediation.
Some of the more common missteps I’ve seen during my career include:
- Minimizing the importance of retirement funds – In is not unusual for the person who has been contributing to a retirement fund to think of it as his or her asset. It is also not unusual for a pension or retirement asset to be one of the most valuable assets of the marriage. When couples divorce at a younger age, they may not appreciate how important and difficult it can be to save for retirement. Instead, they may find it easier to just leave the retirement funds off the negotiating table because of the other spouse’s attachment to his or her retirement funds. This can be quite short-sighted. Alternatives to ignoring the retirement funds can be trading them for another marital asset or dividing them in the future on an “if, as and when” basis.
- Rushing through the parenting schedule – At the time of mediation, parents may be on good terms and in agreement about everything that has to do with the children. Often they think it’s not necessary to put into writing details about how they are going to share time with the children over the holidays, or to schedule a midweek visitation rather than just playing it by ear. Lack of a detailed parenting schedule means putting control of those details in the control of the custodial parent. And while you may be in agreement at the time of your divorce, things can change. For example, the addition of a new spouse often has a significant impact on parenting schedules. Being specific as possible at a time when you are on good terms is a good way to avoid problems if things become strained in the future.
- Neglecting to explore options for medical insurance – During most marriages, spouses and children are often on the same insurance plan. Most people assume that this will be the best choice after a divorce. In this day of two-wage-earner families and, presumably, universal access to health care, the spouse who is on their ex spouse’s insurance plan should, at the least, consider getting insurance of his or her own. While many divorce agreements will allow an ex to stay on their spouse’s insurance plan, this may not be the best option. As long as you are on your ex’s plan, your insurance coverage is tied to their ability and willingness to keep the same employment. Further, it can lead to a lack of privacy down the road (e.g. your ex may have access to account information that might reveal more than you want). If it is financially viable, the spouse who is on the other’s insurance should explore getting their own health insurance coverage.
- Creating a pet-sharing arrangement – For some, pets can be every bit as important as children. It is not uncommon for spouses to plan to share time with a beloved pet after the divorce. If this is truly important to the “non custodial” pet owner, her or she should put it in writing. Sharing really needs to be spelled out in detail. Does sharing mean once a week, once a month or whenever you both agree? Does it also mean sharing vet bills and other expenses? Defining “pet custody” in your mediation reduces the potential for surprises or disagreements down the road.
- Ignoring the pitfalls of joint home ownership – Many divorce couples will opt to keep the family home for a period of years after the divorce, typically for the sake of not wanting to move the kids or occasionally in the hope that the market will improve. This can be a very practical solution in a number of situations. It does, however come with a unique set of problems. The two future joint owners have very different interests when only one of them lives in the house. Even when the divorce agreement clearly defines the financial obligations of each spouse there are still plenty of areas of disagreement. Suppose the person who lives in the house wants to make improvements to the bathroom and argues that it will enhance the resale value. Even if this is true, will the non resident spouse want to put that money into the house or would they rather spend it on their upcoming vacation. The potential conflicts should be seriously considered before entering into this kind of arrangement.
In a perfect world, all people would be reasonable and logical. As people divorce and move on with their lives, perspectives on what is reasonable and logical can change. That’s why you need to be as detailed as possible during your mediation agreement. If there’s any item you believe you and your spouse can discuss at a future date, think long and hard about it before coming to that conclusion. And then still put it in writing. It’s the easiest way to avoid these missteps.