The Contested Divorce - Worst Contract Money Can Buy

 

In my practice as a CPA / Tax practitioner / Business Consultant over the past twenty plus years, I have had the opportunity to work with many divorcing couples. I am constantly reading divorce decrees, dissecting the decisions on filing status, tax exemptions, flow of funds, etc. One common theme seems to run through them all. For all the wrangling, the heart-ache, the stress and the legal fees…..For all the lies and exaggerations, distortions and name-calling…No one, and I mean no one, is ever happy with the contract that is forced upon them at the end of a contested divorce case. And rarely do we find a judgment that is so well-written that it is not subject to interpretation and vagaries that will eventually force the parties back into court for future guidance and modification. To watch these judges in action and to read their decisions will almost always leave you with respect for their integrity and good intention. But you can also see how hopelessly impossible their job really is.

In my initial divorce mediation training, we were constantly reminded of just how bad of a contract will ultimately be signed in contested divorce. Consider the fact that this contract is nearly always forced upon at least one of the parties who comes kicking and screaming to the table. Name one other time where you will be forced to make the biggest decisions of your lifetime at a point where sleep deprivation, uncontrolled weight loss, raw and painful emotion, and separation from home and family (often forced) are the order of the day. Can you think of any other contract you will sign in your lifetime that is so fraught with risk that it must be approved/signed by a judge before it is recognized? You can buy million dollar homes and sell billion dollar businesses without a judge ever being involved! Think about this… Raise your kids as a married couple in the Commonwealth of MA and when they reach college age, you (as a family) are free to make the substantial financial decisions based upon your economic reality. But choose to divorce prior to the college years, and you essentially surrender all right to that decision-making process to the Commonwealth. You can be frugal and cost-conscious your entire adult life, only to find yourself bankrupt in a matter of months in the Massachusetts Family Court process.

I will assume since you’re reading this that you have somehow reached the conclusion that your agreements in marriage are ending. At this painful point in your life, understand that you do have an option. You can, as they say, “lawyer up” and place yourself in the hands of the Commonwealth. In doing so, understand that virtually all decisions will be made for you by lawyers and judges. Your meetings and negotiations will be conducted in a building where the stress is so palpable you can taste it at the front door as they scan your body and belongings for dangerous devices. The facts of your case will be filtered through archaic rules of evidence that lend themselves to a shocking level of lies and deceit. The pace of proceedings will be completely decided by an overburdened judge and lawyers who routinely double-book their days as they sit around waiting at an hourly rate of $250 or more. When you complete the process, I will defy you to argue that there is no better way.

Statistics show that a very high percentage of Court orders resulting from litigated cases end up coming back to Court in the form of contempt filings and multiple modifications. Statistics also show that mediated cases are far less likely to be breached or altered by the parties down the road. The reason is the fact that the mediated contract is tailored to your individual needs.

In reality, the better way does exist and it leads to a much better contract. Successful mediation clients, by design, should spend no more than one short session in the courthouse. In private, peaceful surroundings, you will systematically work your way through all of the important decisions surrounding the end of your marriage. You will decide the pace. You will decide what’s important and what’s not. You will craft the agreement that will govern your family interactions going forward. In choosing that “better way”, you as a divorcing couple will provide yourselves with the foundation for future communication, agreement, and cooperation. Since it is an agreement that YOU wrote, you will be invested in it, to honor it, enhance it, and live by it. By choosing mediation, you tell the Commonwealth “No Thank You…I don’t need you to tell my family how we are going to live our day-to-day lives”. By choosing mediation, you protect yourself from the risk of signing the worst contract of your life!