Going through a divorce is a stressful and intensely emotional time. From facing all of the imminent changes revolving around the separation to dealing with the impact on your children and other loved ones, divorce can be an incredibly difficult process, especially when you add of the confusing legalese to the mix!
The unfamiliarity with the process and the complex emotions that one typically experiences during a divorce can lead to many costly mistakes. In order to help divorcing couples avoid these costly mistakes, we’ve prepared a list of the top five mistakes to avoid.
1. Not Understanding the Law
Not everyone wants to involve attorneys in their divorce – hiring an attorney costs money and can sometimes be seen as adversarial. We completely understand.
HOWEVER, when you enter into settlement negotiations with no concept of the laws regarding issues such as custody, child support, alimony and asset division, you can end up with an agreement that is wholly unfair.
Before entering into settlement negotiations, it’s always best to have a firm understanding of what you are entitled to under the law. There are so many misconceptions out there regarding issues that typically arise during divorce proceedings, which can have a serious impact on settlement:
- For instance, many believe that a marital estate is always divided equally, but in Massachusetts the standard is actually “an equitable division.” This means the division must be fair, but does not necessarily need to be equal.
- Also, while most people believe that they are entitled to alimony if their spouse makes more money than they do, this is not always the case. In situations where child support is being paid and the parties have a combined income of under $250,000.00, alimony is rarely provided.
There are many legal concepts similar to those stated above, which must be understood before settlement negotiations commence; otherwise, you could end up agreeing to terms that are entirely unjust.
While we understand the reasons that some individuals going through a divorce do not want to hire attorneys, it is recommended that you at least have a consult with an attorney prior to settlement negotiations and before any agreement is signed.
Paying for a few hours of an attorneys’ time could be the difference between a fair and reasonable divorce agreement and an unstable financial future.
2. Letting Emotions Dictate Your Decisions
It is rare that a couple can go through a divorce without feeling an onset of complicated emotions. The end of your marriage is an inherently emotional time – it’s perfectly understandable.
HOWEVER, it is important that when you’re negotiating your divorce, you are not making financial decisions solely based on emotion. Instead, you should consider each issue as if it was a business decision.
We see many spouses whose anger and distress over what went on during their marriage make them unwilling to compromise on certain aspects of their divorce. Maybe they are angry over instances of infidelity and want to punish their spouse by any means necessary. Maybe they resent the fact that they carried all or most of the family’s financial burdens and because of that, they feel that they should retain the majority of the marital estate. Maybe they feel guilty over something that happened during their marriage and feel that they should give their spouse whatever they want. We’ve seen it all.
While everyone is certainly entitled to their feelings and no one could ever presume to know what went on in someone else’ marriage – it’s always important to consider what you are actually fighting over and whether it’s worth it. As you can imagine, there are certain situations where you should stick to guns, while other instances may be more conducive to compromise.
When dealing with situations such as these, it’s crucial to consider:
- The exact issue in dispute
- Why this issue is important to you
- The risks and rewards of continuing to fight
- The likely outcome if the matter was brought before the Court.
This way you can make an educated decision on whether or not compromise is best.
For instance, if you are spending $15,000 in attorneys’ fees because you don’t want to cover your spouse’ health insurance, which only costs you an extra $1,000 per year – this may be an instance where compromise may be a safer bet. Or if you’re potentially going to spend upwards of $50,000 going to trial because you don’t want to share your $60,000 inheritance – maybe consider offering your spouse $20,000 of the inheritance.
It’s easy to let your emotions dictate the decisions you make in a divorce. In fact, it can be almost impossible to consistently see things with a calm and rational perspective. But in the end, letting your emotions effect your divorce will only drag out the proceedings, cost both parties a substantial amount in fees and likely have a negative impact on your children and loved ones. This is why we always recommend that clients leave the emotions out of it and consider the issues as if they are making a business decision.
We know it’s easier said than done, but in the long run, it will be better for you and your family if you simply take a moment and do whatever is necessary to regain a logical perspective. The last thing you want is to realize, when it’s all said and done, that you spent thousands of dollars fighting over something that isn’t worth it.
3. Neglecting to Consider Future Expenses/Situations When Settling
Most divorcing couples simply want the get the matter over with – we get it, no one likes going through a divorce.
HOWEVER, when rushing through the process, parties usually end up having to come back to Court in the future because certain issues weren’t worked out in their original agreement. And while no one likes going through a divorce, you’re really not going to like having to return to Court to seek a modification.
This is why it is crucial to have a forward-thinking agreement.
To ensure your agreement is forward-thinking, you should sit down and consider all possible scenarios – what kinds of issues could arise in the future? What kinds of expenses might come up? What happens if one party wants to move? What about future significant others?
There are so many factors to consider, but hashing it all now will save you in the long run.
When discussing the terms of your parenting plan, make sure you consider how schedules could change in the future. For instance, if you have very young children, your parenting schedule will most likely need to change as soon as school begins. Also, what if one spouse is in the military and could potentially get deployed? Instead of having to modify your agreement when this happens, it would be more cost-effective to plan for that change now.
Many divorcing couples also neglect to consider the expenses they could incur in the future.
- Does your agreement specify plans for college?
- What about summer camp and driver’s education?
- Who is going to pay for cell-phones and car insurance?
- What about tutoring and SAT preparation?
- Does your agreement discuss orthodontic expenses if the children need braces?
- What if your work schedule changes and you suddenly need to pay for childcare? Does your agreement plan for that?
Many couples also forget to consider how jobs and income could change in the future. For example, while one spouse may have the better health insurance right now, you should leave room in your agreement to re-evaluate if and when the other spouse gets a better deal.
These are just a few of the many issues that could come up in the future andnegotiating them into your divorce settlement now, saves you from having to seek Court intervention down the line.
While we understand the instinct to just wrap up your divorce as quickly as possible and worry about the other issues in the future – you will most likely regret that decision when you are forced to repeat the entire process all over again.
4. Not Having Clear & Unequivocal Language
Unfortunately, it is very common that one or even both parties in a divorce, don’t always abide by the terms set forth in their agreement. When this occurs, you’ll want to go to Court to seek enforcement of your settlement.
HOWEVER, issues can arise if the language in your agreement is not definite enough.
For instance, it’s crucial that you include specific deadlines for any action required by either party. This ensure that there is no ambiguity regarding when transfers need to occur, paperwork needs to be signed or when children should be picked up or dropped off. If your agreement does not include specific deadlines, it can make your agreement difficult to enforce.
Another issue that tends to arise is the specificity of certain expenses. For instance, if the parties are supposed to split all extracurricular expenses, what exactly constitutes an extracurricular activity? Does summer camp count? What about driver’s education or a community education course?
This is also an issue in regards to uninsured medical expenses and college expenses. Are a child’s braces or glasses considered medical expenses? What about chiropractic expenses or physical therapy? Are the supplies needed for a child’s dorm room considered a college expense? What about a laptop or the rent on an apartment when remaining in a dorm room is no longer an option? In order to avoid future disputes regarding the payment of expenses, make sure your agreement in iron-clad regarding exactly what expenses are to be paid by either or both parties.
It’s also important that you are careful not to use vague language. For instance, if your agreement states that the parties shall contribute to the child’s college fund as much as they are able – what does this even mean?! Who’s to say if a party has the ability to contribute or not?
When reviewing your agreement, it’s important to consider how the language could be interpreted by another party. When you have language that is vague and could be construed to mean many different things – it makes it impossible for the Court to enforce.
If you want to ensure the enforceability of your agreement, always make sure your language is clear, concise and completely indisputable.
5. Not Understanding Your Agreement
Before you sign any agreement, it’s crucial that you understand each party’s obligations. Throughout the years, we have seen many clients who are seeking a modification of their divorce settlement, but have a completely misconstrued perception of the terms of said agreement. Often times, clients have no idea what their obligations are, nor what is required of the other party.
This is a PROBLEM.
We understand that the legal jargon can be difficult to fully comprehend, but this is why it’s so important to sit down with an attorney and have them walk you through ALL the terms of your agreement.
If you don’t have a firm understanding of your obligations, you could get into a sticky legal situation where a contempt action is filed against you, resulting in you having to pay a substantial amount of fees. Further, if you don’t know the other party’s responsibilities, you could be losing out on funds and assets that would certainly help support your family.
We always recommend clients take home a checklist of their current and future responsibilities under the agreement as well as a list of the other party’s current and future obligations. This helps to ensure you avoid future contempt actions and guarantee that you don’t miss out on the support you are due per the terms of your divorce settlement.
Also, please ALWAYS retain a copy of your agreement. It’s very likely you’ll need to refer to it in the future, so please make sure you have both a hard copy and an electronic copy accessible.
Divorce is a very complex and emotional time in one’s life, which is why many individuals make mistakes such as those we’ve listed above. The most important thing to remember is that your divorce agreement will likely be one of the most important documents you ever sign – it will have a substantial impact on your children’s financial security and their upbringing as well as your own financial future. While we understand the need to get it over with, you shouldn’t let your desire to move on negatively impact your future.
At Foley & MacAdie, P.C., it’s our practice to advise divorcing couples with compassion while also ensuring they don’t make the costly mistakes stated above. We want all our clients to walk away feeling confident about their future.
If you are going through a divorce or just considering one, we would be happy to speak with you about the process. If you’re interested in a free telephone consultation, please contact our office at 978-263-4160.
We look forward to speaking with you!