Topic 10: Important for Everyone

Hi there,

In most divorce agreements there are a number of standard provisions (often called “boilerplate”).

The most important of these provisions are:

1. The ability of the parties to have separate wills – this covers the right of both parties to exclude the other from their estate plans

2. Waiver of future claims – this generally says that except as written in the agreement neither party has any claim against the other.

3. Personal freedom to live your own life – this is not a restraining order but it is put into all agreements.  I think it may stem back to the days when women were treated like property and needed a recitation of their ability to live on their own.

4. Completeness of this agreement – this basically says the agreement is the agreement and side deals do NOT count; so, if your soon-to-be-ex promises you something, but says he won’t put it in the agreement and to just “trust me” – don’t.

Then there should be a provision about how to handle future disputes.  Are you going to require trying to mediate first?  Or are you going to simply say that the court is where future problems are worked out.  Maybe you have a parenting coordinator or an arbitrator to divide personal property.

If you wish, this is the point where you can resume your maiden name.

And finally the magic words: “status of the agreement”

Agreements are always final once approved by the Court as to property division, and always open regarding child-related issues, such as custody or support, and education

However there is a choice regarding alimony, health insurance and life insurance for a former spouse.  These provisions can be:

a. Merged into the judgment (more flexible), or
b. Survive as an independent contract (more rigid)

If the provisions are merged in the contract the court can change them (in a whole new lawsuit) if it finds that there has been a material and substantial change in circumstances.  This can be as broad as a new job, a cut or increase in pay, or as catastrophic as a major illness.

The survived agreement standard is a much higher standard.  In order to change a provision that survives, the court will have to find that there are “countervailing equities,” which basically means the change is catastrophic, i.e. not only a job loss, but no assets left to pay support, or the party seeking an increase in support is about to become a public charge before they will change the contract.

You should always have the agreement reviewed by an attorney, as the devil is in the details.