Spooky goblins, howling wolves and haunted houses don't compare with the scary decisions couples face when deciding terms of a divorce settlement agreement.  These terms include matters affecting their future, family and money.  What could be scarier? 

As a trained Divorce and Family Law Mediator,  I am aware of numerous settlement decisions that scare many spouses at the negotiation table.  The fear that the other spouse has the advantage in the overall settlement leaves spouses apprehensive to make hard decisions necessary to get through the process within a reasonable time frame and budget.

Be cautious, but not an idiot

Unfortunately one of the worst decisions in a settlement negotiation is the one where one or both spouses won't budge for fear the other is getting a better deal on one asset or another or one parenting decision or the other.  With many couples sharing similar fears when divorcing, I understand their prudent decision making is not unwise.  However, allowing such fears to lead them to negotiate through the eye of defense and the mind of "the end" rather than that of progress and "a new beginning" can not only stall negotiations but make the divorce process much scarier.

Trick or Treat

I selected five scary decisions that prevent spouses from moving things forward without further legal help and/or through the court system.  I included both sides of the candy, to help you determine if it's safe or a poison apple in what could become part of your future settlement agreement.  The suggested offers are listed with the only details provided or known by the spouse receiving the offer.  We provide some information related to the overall ask and how to stay productive in talks if it comes up.

5. One spouse asks the other to accept assets with equivalent value to assets he/she wishes to acquire in the settlement.  The value has been established based on factors that do not include a professional opinion.

TRICK

While this idea alone is common and reasonable, the decision to accept the deal without either spouse knowing the appraised value or value determined by another method (e.g. comparative market value) acceptable by both parties is a mistake.  More over, it is the responsibility of each party to determine the tax/insurance liability, maintenance, fee's and/or penalties for [early] withdraw associated with an asset as part of a divorce settlement.  Choosing to accept the deal without such knowledge could result in one spouse assuming a higher value of assets. This is especially true with investments where one may have a higher tax liability than the other.

Since this is a warning about what happens all too often with unsuspecting spouses, our opinion is that it is a TRICK.  However, this does not mean spouses should shut these offers down!  This type of horse trading is common and helpful in getting through the many assets needing to be divided in a settlement. 

You should understand your liability and take the opportunity to attain a professional opinion of value and/or trust your knowledge and opinion of value based on a tangible analysis/professional opinion.  Either should be strong enough to provide you assurance you made a good decision that you can accept and live with for years to come.

4. One spouse asks the other to take over the payments for two of the four credit cards that are in both names.  Each set of the credit card debts has a value of two-thousand dollars with a combined total debt of eight-thousand dollars for all four credit cards.

TRICK

Both sets of revolving credit card debts are of equal value.  However, there is no information relative to the interest rate on either card and/or other details regarding known, future interest rate changes, or fees.  Furthermore, regardless if this agreed upon term set forth in the settlement (separation) agreement, as part of- or included with the divorce decree (judgement), both spouses are each responsible to the creditors (banks, lenders, credit cards, etc).  If one spouse fails to make timely payments, the other spouse is still responsible for the debts and could assume the same derogatory reports to the credit agencies, resulting in damaged credit.  

Many spouses choose to close all joint credit cards by making balance transfers to individual accounts or paying them off with marital cash assets.

3. One spouse asks the other to accept a parenting plan that provides that spouse less time with the kids unless that spouse can change his/her work schedule so that the children have a consistent visitation schedule.  This would result in that spouse having visitation of the children less than 20% of the time.

TREAT

Only professionals can advise what is in your child's best interest and within your legal rights, but studies show children within non-nuclear families (a family where both parents live in separate residences) thrive with consistency.  This means many parents have been advised to forgo quantity of time with their children in lieu of a higher quality life for their children.  This was not because the parents were less than good at their parental duties.  It simply meant the children needed something that conflicted with the schedule of availability of the parents who were performing other functions of parental obligations (such as earning an income).   It may have seemed unfair to some parents.  However, courts do not regard what parents deem as fair over what is in the best interest of the child(ren).  It's a hard realization, but it is the reality of custody law.

In this example, the issue of one parents inconsistent work schedule also presents problems for schools knowing who to release children to and on what days.  Kids schedules related to sports, school events, social interactions, etc. change frequently and without a consistent custody schedule, the schedules become problematic.

In summary a custody schedule is not defined on a basis of "fairness" to either parent.  Children are not community property like the marital assets. 
Time with them is not divided equally and/or fairly between each spouse unless it is agreed upon by both spouses (and accepted by court) and/or in their best interest as determined by the court, parents or other governing party.

2. One spouse offers to refinance the marital home after the divorce is final.

TRICK

Many spouses who made this type of deal on mutual debts and/or assets encountered numerous issues that the judgement did little to satisfy.  The divorce judgement enforces each spouse to make whole the other.  It does nothing to relinquish either spouse from the responsibility to the mortgage(s), taxes, insurance and property upkeep.   

When these spouses agreed to pay the mortgage(s) on the marital home until, after the divorce was complete and while the other spouses may have been awarded another asset of equal value and liability, and one fails to make payments and/or follow through with the refinance as agreed, both remain financially exposed and liable to the powers that be on BOTH assets/liabilities.

Many attorneys recommend getting all refinances, payoffs, balance transfers, QDRO (qualified domestic relations order) and account closures completed before the divorce judgement is entered (though in most cases none are required to do so).  At the very least, many spouses include a deadline if the terms allow for the other spouse to complete these after the divorce judgement.  

1. One spouse claims he/she has been advised he/she would stand to gain a higher award if the divorce is litigated and would like a larger settlement than 50/50.

TRICK or TREAT

This one is simple.  GET LEGAL ADVICE!  Maybe your spouse is lying or maybe not!  The only way to know is to consult a local, legal advisor experienced in the courts where your divorce will be processed. 

It's beneficial for either spouse beginning mediation or direct negotiations where his/her attorney isn't present, to have a clear understanding of his/her legal rights and the legal rights of their spouse.  A legal advisor can help his/her client understand the law as it applies to his/her case so that the client can negotiate on the basis of the client's potential if the case were to go before a judge.

When both spouses know where they stand legally, this kind of banter throughout negotiations can provide a foundation for the couple to build a settlement.  If a spouse is ill-advised of their rights, then it can be a more expensive, less successful negotiation where one spouse is bullied by the other.

Approximately 90% of divorces are settled out of court for a reason.   Letting a third party like a judge, commissioner, arbitrator decide decisions that affect your family, finances and home is a last resort.  Going to court typically takes longer and costs the couple more.  So many couples use what they know could happen in court for leverage in negotiations knowing the goal is to achieve the best settlement.  

We list this example as a TRICK or TREAT because it can be either depending on the legal advice obtained and knowledge of each spouse. 

Either get educated or learn to live with the scary consequences of your decisions in the divorce.