Separation Agreements: The Devil in the Details

There is a saying… “the Devil is in the Details”…. meaning details that are overlooked can cause problems later. No doubt this is true when drafting a separation agreement. Attention to detail is essential.

The top ten big issues that need to be resolved are:

1. Where will the children live?
2. How much time with the children spend with each person?
3. How will holiday time be scheduled with each parent?
4. How much child support will be paid?
5. Are there any extraordinary extracurricular activities that should be shared costs?
6. Is there an obligation to pay spousal support? How much? How long?
7. How will the property be divided?
8. Is there an equalization owed by one person to the other to equalize the property division?
9. Do we need to maintain life insurance to protect the support obligation?
10. Should the extended health care insurance coverage continue for everyone?

Robert Hues of Ohio wrote an excellent blog where he lists some of the many details often missed in separation agreements. Here is Robert’s list:

1. Garage door openers
2. Gate remote controls
3. Extra keys to car and house
4. Security codes
5. Hotel credit card and airline points
6. Utility and other deposits
7. Tax and insurance escrows
8. Car tag credits
9. Overdrafts on joint checking accounts
10. Dates to carry through insurance coverages
11. Attorney’s fees paid with joint funds
12. Real estate escrow account refunds
13. Important days not addressed in the Court’s Parenting Time Order
14. Season ticket rights
15. Country club membership and club access
16. Storage unit details
17. Dividing and copying family photos
18. Copying documents, pictures and files from the family computer
19. Providing a change of address notification to Bureau of Motor Vehicles, support enforcement agency, credit cards, magazines, post office, etc.
20. Cell phone account restructuring
21. Review of auto insurance coverage
22. Close joint credit cards
23. Update estate planning documents and review beneficiary information
24. Stock options
25. Future health insurance coverage and cost

We could add to Robert’s list indefinitely. Here are some more details to consider:

1. How and when will new partners be introduced to the children?
2. How will we celebrate the children’s birthdays?
3. Will spousal support continue to be paid if the recipient gets married or lives with someone?
4. How will we share the costs of post-secondary education?
5. Who will hold the passport and health insurance cards of the children?
6. What happens if one spouse wants to move far away and we have children?
7. Can both parents attend the sports events of the children and parent/teacher interviews together?
8. How will we divide the books and CDs?
9. How do we divide heirlooms from one side but given to us during our marriage?
10. Will the children be able to transport their items between homes?
11. Who pays for recreational port equipment used in both homes?
12. Who gets the car seat and children’s furniture and children’s toys etc.?

The list of details is endless. Although it is a great idea to deal with as many details as possible so as to minimize future conflict, some issues will come up that you did not discuss. Perhaps the best we can do is develop some principles for behaviour and resolving conflict. Here are some ideas:

When issues arise, we will do the following:

1. We will treat each other the way we would like to be treated… even if it may not always seem to be reciprocated.
2. We will not attribute negative intention to the other person but rather assume the best.
3. We will always discuss issues respectfully and politely.
4. We will not allow ourselves knee-jerk responses but rather will “sleep on it” before responding.
5. We will not engage or expose the children to our disagreements.
6. We will negotiate respectfully. No interruptions. No yelling. No name-calling.
7. We will fully disclose all documents and information during negotiations.
8. We will both compromise.
9. We will seek to meet the core concerns of both parties.
10. We will not take advantage of mistakes by the other party.
11. We will not sweat the little stuff.

Paying attention to the details is an essential skill for a family law lawyer because one of our mandates is to minimize future conflicts for our clients. Our separation lawyers will work with you to help create a separation agreement that meets your needs and keeps the devil in his place.