Flexibility and Predictability in Your Separation Agreement

 There is a point in many of my divorce cases, whether collaborative, mediation or otherwise negotiated, at which the parties ask, “How many of these details do we need to figure out, and how many can we leave open?”   The general answer is that there are some items that need to be conclusively determined, but many that do not.  But, the more useful answer is that what you nail down in detail and what you leave open to future determination or adjustment is largely a matter of personal preference.  I talk to people about the inherent tension between flexibility and predictability.  Generally, the more predictable your agreement is, the less flexible it is.  And, the more room you leave to agree later, the less predictable the outcome will be. You can nail down many details or hit the major points and leave room to decide later.   In a separation agreement, the key (and sometimes the challenge) is to find where you, as two people who have to find mutuality, are comfortable.  As the diagram suggests, there is a balance involved.    Admittedly, lawyers tend to be more comfortable nailing down as many details as possible.  Lawyers like certainties.  So, your lawyer may be less comfortable with flexibility than you are (but not necessarily).  “The lawyers dwell on small details” in the words of the Don Henley song.   But, in the end, it is your agreement, your children, your money, and your future.  So, in the end, you get to make the decisions. In thinking about how to strike the balance in your agreement, here are some factors to consider:
  • How will you get along with your former spouse in the future?
  How confident are you that your ability to communicate and agree now will continue?  Some ex-spouses are very confident that they will be able to work out any future issues without much fuss; others, not so much.  The more details you nail down up front, the less room there is for confusion later.      
  • What is your tolerance for risk? 
  Clients with a low risk tolerance generally prefer the more predictable agreements.   Clients with a higher risk tolerance generally prefer more flexible agreements.  Some people are just more comfortable with the unknown.  Know thyself!      
  • What happens when new partners or spouses come along? 
  Sometimes new spouses or love interests change dynamics between ex-spouses.  How confident are you in your ex-spouse’s and your own ability to moderate that dynamic?    
  • How stable is your life? 
  For example, is someone changing jobs, finishing an education, moving locations or managing an unpredictable illness?  Or, is it more likely that your life’s major components are stable?  Obviously, the only constant is change.  But, some people’s lives are more predictable than others.      
  • Are your kids pretty adaptable, or do they struggle with changes and transitions?
  This is one place where a child specialist is invaluable.  They can give you tremendous insights into how your kids are reacting and will likely react to change.  Kids who thrive with change may be able to tolerate more flexibility in their lives than kids who thrive under more predictable circumstances.  Granted, as parents we all have some insight into how our kids adapt to change.  But, the tumult of divorce is likely different than anything they’ve faced.      
  • Do you prefer the known, or revel in the possibilities of the future? 
  Let’s face it: some of us are planners, and some of us are not.  I often see families in which one spouse is a planner and the other prefers to fly by the seat of their pants.  Neither is right or wrong.  But, these stylistic differences can play a big role in where you strike your balance.        There is no way to nail down every detail or plan for every possible contingency in a marital settlement agreement.  As I tell clients, that agreement would be infinitely long, and odds are, largely useless.  At the same time, failing to determine enough terms can render the agreement pointless.       There is a large range of reasonable balances between predictability and flexibility for a divorcing family.  Understanding the balance, and considering the factors I’ve discussed should help you find your balance.     

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