I have had people come up to me just before they entered into their financial agreement and ask me what they should consider before writing one up. I can't say I am particularly knowledgeable in this area, but let me just go over some of the items that were in my own agreement. After all, I paid thousands and thousands of dollars for it! There must be something helpful in it. So, page by page, this is generally what is in my financial agreement:
INITIAL MUMBO JUMBO
1. Right at the beginning the agreement talks about who is involved--me, my ex, and my children. The marriage has irretrievably broken down, etc, etc..
CHILD SUPPORT AND ALIMONY
2. Next the agreement goes into detail about the amount of Alimony and Child support that I will receive, when it will begin and when it will end, and how it will be adjusted as each child reaches the age of 18 and is no longer eligible for support.
3. If your children have a disability, you can make provisions to defray the costs of that disability at this point. CT State law does provide for that option.
4. If you wish, you or your ex can include provisions for what will happen if you cohabitate with a new partner or remarry. It is up to you how detailed you want to get.
5. My financial agreement covers how much income I can earn before my earnings would be considered a substantial change in circumstances that would provide the basis for a downward modification of child support and alimony.
6. My agreement also covers what could happen should my ex husband lose his employment or have a reduction in his earnings and what we would do as a consequence. There are many options here; for example, you could agree under these circumstances that your ex will hand over an asset of some kind in lieu of the child support and alimony. Anything is possible as long as your ex agrees with it.
7. You will want your ex to agree to waive his right to receive alimony from you. This might be relevant if a year or so after your divorce you suddenly strike it rich and win the lottery. Anything is possible right? So make sure this provision is in place.
8. In Connecticut there is no provision for continuing your health insurance through your husband's employment after the divorce. Most women are eligible for COBRA and continue on with that; however, it is terribly expensive. It may be possible for you to negotiate with your ex to keep you on his health insurance. Do whatever you can to make that possible because it will save you thousands of dollars. At the very least, I think your ex is automatically expected to continue the health insurance for your children. Health insurance is essential and will provide a safety net for both you and your children both physically and emotionally.
ANY ADDITIONAL SPECIAL EXPENSES
9. Who will pay for co-pays and for health expenses not covered by insurance. Also, what about dental care and orthodontia, glasses, or other prosthetic devices. Also, what about extra curricular activities such as special school programs such as field trips, music lessons, dance lessons, tutoring, etc. You don't necessarily want all of that coming out of child support. That will overwhelm you and not benefit the children.
10. Childcare costs, particularly when you return to work?
11. Any expense incurred on behalf of the children by either party without consulting the other which now must be paid for and one or the other party wants assistance paying for it.
12. What happens to child support when a child is over 18, but still in high school? Will you continue to receive financial support for that child? Now is the time to arrange for that.
ANY SPECIAL PROVISIONS, RELIGIOUS INSTRUCTION
13. Any special items such as Grandparents' participation in parenting or visitation rights as agreed upon by both you and your ex. Get it in writing now or you will lose it. This could include a trip to Europe, a private school, the disposal of an anticipated inheritance, or any particular preferences regarding religious instruction and participation, etc.
PAYMENT OF COLLEGE FEES
14. Plans to pay for the kids college fees. At minimum you would have the court retain jurisdiction to enter educational support orders for each child pursuant to C.G.S. Section 46(b)-56(c) which simply means each of you would pay what amounts to half the cost of the child's education at the University of Connecticut. Please don't forget this provision for college; it is extremely important to provide for your childrens' future.
KEEPING TRACK OF THE MONEY AND TAXES
15.A provision to require each of the parties to report to the other any significant change of circumstances in regard to employment, earnings, or income within seven days of the occurrence of such a change so you can go to court or anticipate the need to go to court in order to respond to that change.
16. A provision to provide each other with tax returns along with the backup documents for that return for the period of time when Alimony and child support are in place so as to ensure that each party is being honest about their current income and assets. Remember, a tax return is generally meaningless without the backup documents, so be sure you get them.
17. If the parties intend to file joint taxes for the time period covered by the pendente lite period, a review of the conditions under which this will be done. Will you hire one accountant to do the job for you, or will you have one accountant for you and another for him? Who will pay for the work to be done? Who will get any refunds and/or pay any penalties that result from the filing of these taxes?
18. What will happen if a few years from now, the IRS contacts you and says a joint tax return which your ex filed prior to judgment has been found to be incorrect and you both owe the federal government $10,000. Who is responsible for that? Write what you agree to into your financial agreement so you don't end up in trouble.
19. Who is entitled to claim the children as dependents on their tax returns. Since your ex will be entitled to deduct alimony from his tax return, my guess is you should be able to deduct all the children as dependents from your tax return. It seems only fair. Ultimately, it depends upon where the financial benefits are.
DIVISION OF ASSETS AND LIABILITIES
20. A detailed review of how the assets are going to be divided including the details of what needs to be done in order to facilitate that division. A statement of which assets each party will receive, which liabilities each party will be responsible for, and a statement of who will be responsible for which loans and bank accounts.
21. Each party will maintain life insurance on each one of them in order to make sure the obligations of alimony, child support, and the financial benefit of the assistance of a second parent are covered should either of the parties die. This provision will include an arrangement to make sure that each party can request information from the other party to verify that the life insurance is in place.
22. Who will pay for the legal fees and GAL fees incurred during the divorce? Connecticut has legislation in place that allows the earning spouse to pay the fees of the non earning spouse and you may wish to attempt to take advantage of that. It may not work, but it is worth a try.
METHOD FOR OBTAINING CHILD SUPPORT AND ALIMONY
23. What is the method by which you will be paid child support and alimony--wage garnishment or automatic deposit. Describe it in detail and put in a statement that your ex will faithfully abide by this method.
PROTECTION FROM ANY FURTHER LIABILITIES
24. Is there anything you want to be sure you are no longer legally liable for, put that into your agreement as well. For example, if you bought your ex a toaster not long before you signed this agreement and the toaster turns out to be defective and burns down your ex's house, make sure he will not be allowed to sue you for that.
FINAL MUMBO JUMBO
25. Remarks such as just because my lawyer wrote this document up, that doesn't mean his interpretation of the document takes precedence over the opposing attorney's interpretation of the document.
I don't know if this is helpful to you guys, but for those of you who have never seen a financial agreement before, it certainly gives you a sense of what is in one. You might consider going to a bookstore or a library and looking up books on financial agreements. There are websites you can look up on google which can provide you with additional examples, but at least by seeing what mine has in it, you can begin to have a good idea of what you are dealing with, and you can pretty much continue on from there.
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Tuesday, November 2, 2010
Monday, November 1, 2010
As your divorce moves to a close, you and your ex will start to talk about the division of the marital assets which is ordinarily formalized in a financial agreement which becomes part of the dissolution agreement at the time of your divorce. This is when you will observe the following three elements line themselves up and play out in your life. They are: 1) the quid pro quo; 2) X-stasy; and 3) The bum's rush. Read up on what I say about these elements and see if you recognize them.
Quid Pro Quo: By the time you start talking about the financial agreement, most women in a high conflict divorce have been at it for well over a year. Your small stash of savings has run out, your children are beginning to show signs of the pressure, your bills are unpaid, your credit rating is destroyed and your lawyer is pissed off at you because you haven't paid his bill in months. Some of you may have health issues that have been left unattended, your car has broken down, and the plumbing doesn't work in the house, but you can't afford a repairman. That's when the lawyers in your case decide that it is time to resolve financial matters. Of course, there was no real reason why they couldn't have gotten you divorced in three months, but hey, it's more fun for those guys this way! Plus, they know that with all the financial pressure on you, it won't be long before you cave, and do they have an offer for you. Just agree to a shitty financial agreement and all the harassment will stop, at least for a little while! Oh, come on, did you really expect him to stop permanently? Read my lips, Narcissistic Personality Disorder.
X-tasy: All of a sudden, in the days leading up to the negotiation of your financial agreement, your ex will become really friendly towards you and find a way to chat with you amicably on the phone or linger and talk with you as you exchange the children. All of a sudden, again, after harassing and abusing you for months, he will become really sympathetic and start talking about how you both need to be on the same page for the sake of the children. He may say he is sick and tired of the constant litigation, which, after all was not his fault but the fault of the wicked lawyer who led him down the wrong path, which he now regrets. Yadda, yadda, yadda! You might even start basking in the warm deceptive, glow of, "Finally, he understands what a fool he's been!" Trust me, that'll last only until the ink is dry on your signature on you guy'ses financial agreement.
The Bum's Rush: This is when your lawyer comes at you with all guns blaring demanding that you agree to a particular division of the assets right away before you have a chance to think about it. You can be sure the agreement leaves you with next to nothing but your life. Up to this point, you may have discussed several financial options regarding the financial matters that need to be addressed in your dissolution agreement, ta dah!, now only one supremely logical one remains as far as your lawyer is concerned. In this version of events, you may even find that your lawyer will tell you that if you don't accept the agreement, then he won't represent you any longer. Any time you try to propose another alternative, the lawyer will answer with sentences like, "The judge will only agree to...", "The judge won't accept..." All right, already, when did your lawyer suddenly become the mouthpiece of the judge!
What is most humiliating is that, once you have agreed to the division of assets as bad as it is, then you are required to go to court, grit your teeth and declare to the world your complete satisfaction with the agreement in what is known as...
...The Canvas: Once you have signed your financial agreement in preparation for the dissolution of your marriage, your options for renegotiating a settlement are significantly reduced. The are reduced down to almost nil when you get up on the stand just before the judge declares you divorced when you respond to the canvas. The canvas requires that you go point by point through your financial agreement and state out loud that you understand each item you agreed upon and that you have agreed upon it of your own free will. The judge will ask you whether you were satisfied with your representation by your lawyer, whether you are under any kind of duress or coercion when you signed the agreement, whether you are accepting the financial agreement of your own free will. You answer these questions under oath. That makes it a little difficult if you change your mind a few weeks later. Trust me it does. So do not sign this agreement thinking that you have have a chance to change your mind later, because the likelihood is that you won't be able to.
How can you avoid getting taken advantage of in a situation like this. Well, I don't have any great answers for you, to be honest. The reality is that if you don't do as you are told exactly as your lawyer tells you to do it, you are likely to face a situation where the lawyer will throw up his hands and withdraw from your case. And don't think he won't do it, because he will. He has had enough of you not paying his bill anyway. However, there are some ways to slow down the momentum so you don't end up damaged quite so badly and there is one countermeasure I can think of to improve your situation.
First, evade, avoid, and delay like mad whenever you are supposed to make a final decision. Say you have a headache and can't make up your mind just yet. Get lost in the traffic on the way to negotiations. When you are supposed to make a decision, get a case of food poisoning. That way you will get a little space and at least have time to think so that you might have a chance to point out to your lawyer in small ways how dumb he is being. Over time, some of that may sink in with the lawyer as you bob, sway and duck.
Second, hire a forensic accountant who is qualified to provide expert testimony. Even if it takes your last dime on earth DO IT. Have this accountant review your marital assets and determine the value of each of your joint assets and then write a recommendation on what would be a fair division of the assets based upon your circumstances. Such an accountant will most likely formulate a fair and equitable financial agreement. Do not tell your lawyer of your intention to do this until you have the report in your hand, then tell him about it. The fact that this expert accountant is an objective, independent party who is ready to go to court if necessary will be quite persuasive to everyone involved. Then, if you take this accountant along with you to court, my best bet is that your ex won't even want to go to trial, but will settle with you along the lines that the accountant recommends. No matter what your lawyer thinks, the judge will care much more about the accountant's testimony than that of anyone else.
Again, of course, I'm just talking about the possibilities, because with an abuser anything that can go wrong, often goes wrong.
Finally, keep in mind that statistics show that when a woman goes to trial she ends up with more money than when she doesn't. So if you can get your lawyer to litigate, litigate. Be judicious, because as I have said, you don't want to piss your lawyer off, but when you can, just threaten to go to trial. Lawyers hate it when you go to trial and so do judges. So make 'em miserable and make sure you get the money you deserve.
Ultimately, you may not be able to get a fair deal--shit happens--but at least if you try some of these suggestions, you may have some success. And if you don't, at least you didn't walk into the trap believing everything was just fine like some dumb sucker and that will make you feel a little better in the end--not much better, but a little, and a little is better than nothing.