While it is an exaggeration to say that half of all marriages end in divorce, it is undeniable that the number of marriages that end in divorce is quite substantial and has been on the rise. Some of the most contentious issues in any divorce proceeding that involve children are custody and decision making. There are several variations on the joint custody theme involving joint decision making but I am going to talk about the situation that involves joint consultation on all major issues with one parent having “final decision making authority”.
All too often, the parent that has “final decision making authority” is under the mistaken impression that they do not need to even to consult with the other parent. This is problematic as such unilateral action without notification and consultation could result in that parent having to pay the full cost of the activity or expense involved with regard to the child(ren) (a “Child Support Add-on”). While the parties’ settlement agreement should clearly specify the process, the usual process involves notification by one parent to the other of the Child Support Add-on with regard to the child(ren) and the cost thereof. The parents are then required to consult with each other, in good faith, in an attempt to reach a mutually acceptable decision. If the parties mutually agree, then each parent would be responsible for their respective pro-rata share. If the parents cannot agree, the decision making parent must then notify the other parent of his/her “final decision”. At that point, the other parent would then have the obligation to seek court intervention (or mediation/arbitration if the parties’ settlement agreement provides for such alternative dispute resolution) if that parent does not agree with the final decision of the “decision making” parent. The failure of the other parent to respond or to timely seek court intervention could result in the non-decision making parent still having to pay their pro-rata share of the Child Support Add-on.
After the parties’ are divorced, the goal should be to stay out of the court building. In order to help achieve that result, divorce settlement agreements need to be drafted very specifically and with language that everybody can understand. To aid in this process, here are some important considerations and clauses to think about:
clearly define the notice methods and time periods (i.e. notice must be in writing by email, fax or text message with 48 hours to respond);
the recommendations of some third parties should be given deference (i.e. teachers and school officials with regard to educational decisions, doctors and therapists on health related issues, clergy on religious issues, etc.);
use of a parenting coordinator to settle disputes;
alternative dispute resolution clauses requiring mediation and/or arbitration;
specific language regarding what happens if the decision making parent enacts a unilateral decision without proper notice and/or consultation;
similarly, specific waiver provisions if the non-decision making parent does not timely respond and/or seek court intervention (or other alternative dispute resolution) after proper notice; and
while getting the children involved in these matters is never advisable, when they reach a certain age (i.e. 13+), the child’s preference should also be considered.
While there are many other situations and clauses that need to be considered, the idea is to be specific enough so that parents are not in court litigating over whether their child needs therapy, tutors, plays baseball, swims, goes to summer camp, etc. and who is responsible to pay for it. One factor why divorced parents end up litigating in Family Court, besides the obvious financial ramifications, is poor and vaguely drafted divorce settlement agreements.
In conclusion, try to avoid post-divorce litigation by being specific when drafting your settlement agreements in matrimonial cases, comply with the provisions of the agreement and always ask yourself the most important question which is “what is in my child(ren)’s best interest”. If you need help or guidance either with your divorce or post matrimonial litigation, call Scott Stone, P.C. for a consultation.