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Mediating Interim Agreements for Couples Contemplating Separation

Are you considering a change in your marriage, but a divorce or a formal separation seems premature? Perhaps you want to initiate a dialogue but have no idea where or how to start. Commencing a legal action may feel hostile and unnecessarily aggressive. Maybe you even think the relationship can be saved. Or, you believe it cannot be saved but jumping into a divorce seems like a big leap at this point. Maybe you want to see how the kids and your spouse (and yourself!) handle an initial step.

Where/How can you start? What kinds of issues should be tackled?

If this speaks to you, read on to learn about mediating interim agreements.You will see below that there are many kinds of interim arrangements that couples or individual spouses can explore, who are thinking they need to do something, but are not sure what. I divided this article into two parts, addressing first financial agreements, and then other kinds of agreements. Think of it as a mix and match…

FINANCIAL AGREEMENTS

MOVE OUT AGREEMENTS

These agreements allow one party to vacate the family home without jeopardizing her or his rights to ultimately occupy the home or spend a majority of time with the children. With such an agreement, the parties can agree on rules, such as access to the home, method and scope of communication and a temporary parenting schedule.

Funding of the move and expenses for both households are agreed upon and can be spelled out, with various levels of budget analysis, depending on a couples’ needs.

Move out agreements also include many aspects of the other types of agreements described below.

STOP THE CLOCK

Stop the clock agreements (STCs) stop the accrual of marital property, including bonuses, 401-k contributions, appreciating businesses, as well as the accrual of debt. Rather than the traditional approach to accomplishing this goal, i.e., filing a litigation, this can be achieved through a confidential, negotiated agreement, within your control.

Through an STC, couples do not have to rush towards litigation or divorce prematurely in order to protect certain assets or income that would otherwise be in the marital pot.

CASHFLOW

Cashflow agreements focus on clarifying expenses, and which are joint and which are separate, once the parties live in separate homes, even temporarily. Working this out in advance, anticipating upcoming expenses and budgets, can prevent conflicts that inevitably arise when we avoid conversations, causing confusion and tension. It is a great relief to take off your plates the need for regular (or even daily) communication about how to pay for house or child related items.

FINANCIAL CONFIDENCE REGARDING ASSETS/LIABILITIES

When a legal action for divorce is filed, the court imposes “Automatic Orders” which prohibit both parties from spending outside of the ordinary amounts, and making major changes to finances. This includes restrictions on selling marital assets, withdrawing from retirement accounts, taking on unreasonable debt, or shifting or reducing insurance coverage for the spouse and/or children. These “Automatic Orders” can be very comforting to parties who have difficulty communicating, as well as trust issues.

These same terms can be included in any interim agreement, which is a great way to accomplish this level of comfort for everyone, without taking the much more dramatic step of commencing a formal, adversarial litigation.

OTHER KINDS OF AGREEMENTS

SHARING THE MARITAL HOME

In a shared home agreement, we create rules or guidelines for use of the joint home, to achieve a more peaceful co-existence. As with all of these agreements, there is a range of how detailed to be, based on need and comfort levels. You can negotiate a private space for each parent, or an arrangement to vacate according to a schedule, so each parent can relax when at home, especially if caring for children at the time.

Sometimes the unknown (“When is he/she coming back?” “What if she/he barges in to watch TV while I’m here?”) can create tremendous anxiety that can be avoided with a little planning and forethought.

Or, couples can simply agree whether to notify each other in advance if he or she will be out overnight, or come home late. Method and frequency of these communications might be very meaningful, such as whether notice is by text, phone call or email.

I have seen many spiraling situations, resulting from inevitable misunderstandings, despite good faith intentions and efforts to be thoughtful and respectful, because guidelines were not discussed, agreed upon and documented in advance. The relief and improvement once the agreement is in place and functioning greatly benefits the whole family.

TEMPORARY PARENTING SCHEDULE

Even with both parents residing in the marital home, negotiating a temporary schedule for responsibility for the children, rotating on a daily or weekly basis, can make life easier. These agreements are excellent for children since they can stay in the comfort of one home, while emotionally transitioning to their parents’ separation. There can be a process for checking in on how the arrangement is working, and making changes. This structured communication can inform long term planning for a schedule, and begin to create a new working relationship between parents.

NESTING

Nesting agreements are similar to home sharing agreements, in that the children remain in the family home, but with only one parent at a time spending overnights there. Sometimes parents rotate weekly, or every few days.

These agreements require further financial discussions regarding how to pay for a second home where the outside parent can sleep. Often, this is a small studio apartment nearby, that the children will not visit.

The parents can plan in advance which rooms each will use when in the marital home, and whether the second home will be used by both parents, or only one parent. If shared, clear rules for maintaining the second home should be documented as well.

Keep in mind that while the children remain in the home, either in a home sharing or nesting agreement, there can be shorter periods of responsibility each parent has with them and more frequent transitions from one parent to the other than there would be if the kids were moving between homes, which is the more likely arrangement for a post- divorce, long term agreement.

RELATIONSHIP STATUS

It can be enormously helpful to clarify the goals for the parties’ relationship during the interim period. Will you participate in couples counseling, and try to repair your marriage? Or, will you live separate, independent lives, date other people, and move on from each other emotionally? Although it may be painful to have this conversation, it is vastly preferable to having completely different expectations and hurting each other, creating more tension and arguments.

Participants should consider addressing what to tell the children, friends, family members, colleagues, etc., about the status of the marriage. Again, being on the same page can avoid those awful moments when, despite acting in good faith, someone was unnecessarily terribly hurt finding out something that the spouse said or did.

OTHER CONSIDERATIONS

It is important for couples to understand the legal implications of these agreements. Parties should make informed decisions and know when they may be waiving legal rights or taking on obligations exceeding their legal duties. As mediator, I explain basic legal principles so clients can decide whether and when to consult with separate legal counsel before signing any contract.

In order to create an interim agreement in a time efficient manner so that it can start to help the family quickly, it should state that provisions are “without prejudice.” This means that they cannot be held against either party if they pursue a final, long term divorce down the road. With this peace of mind, couples can feel comfortable proceeding.

Interim agreements can include a process for how to address concerns and issues that arise while they are in effect. It is a new dynamic situation and should be treated as a work in progress. For example, will both parties agree to attend mediation if either raises a concern and requests it? How will it be paid for?

Couples can also decide whether there will be a “sunset” clause. In other words, will the agreement expire after a certain amount of time unless the parties affirmatively agree to continue it? Or will it remain in effect indefinitely?

Feel free to contact me for a free, confidential phone consultation to explore whether an interim agreement is right for you and your family.