Moving Toward Resolution
In my last blog post, I told the story of Elizabeth and James, with their permission. James wanted to modify their settlement agreement five years after their divorce since their daughter had just turned eighteen. In Virginia, once a child turns eighteen and has graduated from high school, there is no child support obligation. They have another child, a son who is fourteen. James retained a lawyer and informed Elizabeth how things were going to be amended. Elizabeth felt stressed and upset. During their marriage, James was the unilateral decision maker. She had not liked his failure to consider her input during the marriage, and she did not like his lack of considering her opinion now. The couple had been divorced for five years, and Elizabeth did not want to fall back into old communication patterns, She wanted to have a collaborative, and not an adversarial, approach to working through these post divorce issues.
Elizabeth retained a lawyer as well to level the playing field, but she had no interest in paying $400 per hour to her divorce attorney, as much as she liked her. Instead, I helped Elizabeth and James in drafting a Memorandum of Understanding (MOU) that set forth and clarified their intentions. Elizabeth and James agreed that (1) they both want to share expenses 50/50, no matter what their incomes are; and (2) they both want to continue contributing to their children's 529 accounts until their children finish college so that there is money for graduate school. What they disagreed about was how to share expenses 50/50.
The MOU stated in pertinent part that Elizabeth would continue to carry the children on her health insurance policy as long as the insurance was reasonably priced, that Elizabeth and James would equally share all of the children's expenses -- such as cell phones, sports, extracurricular activities, car insurance, and health insurance -- until they were able to gradually take on the responsibility of paying for their own expenses, and that there would be an annual reconciliation of all previously agreed-to expenses over $100.
The real issue here was how to move Elizabeth and James from old communication patterns -- where moving toward agreement was stalled -- to new ways of talking to each other with a neutral mediator so that agreement could be reached. Mediation works!
My friend Elizabeth called me recently to talk about her attempts to resolve some post-divorce issues. She was extremely frustrated and upset. She and her ex-husband James, a lawyer, had been divorced for five years. They share all of the expenses of their children 50/50. They agree that, no matter what their incomes are, they want to continue to share expenses equally.
My friend's daughter had recently turned 18 and had started college. Her ex-husband wanted to modify the original divorce decree. He was tired of the current method of how expenses were shared. For the past five years, he would send a monthly email to Elizabeth listing all of the major kids' expenses, such as car insurance, cell phones, voice lessons, and sports fees. In return, Elizabeth would send a monthly check to him for half of the total expenses.
Some couples prefer to share expenses using a pro-rata formula. If the husband's income is 30 percent more than the wife's, for example, the husband and wife may agree that the husband would pay a greater proportion of their children's expenses.
James wanted to share expenses differently going forward. He was not interested in using a pro-rata formula. He informed Elizabeth that she would pay for health insurance and cell phones and he would pay for car insurance and soccer. There would be no more monthly communication about bills or expenses and there would be no monthly reconciliation. In fact, there would not even be an annual reconciliation. Elizabeth was intrigued by the suggestion, but before she could consider the benefits and disadvantages of this change, James informed her that his lawyer would draft a revised order. She would have a couple of hours to review it before the revised order would be filed.
Elizabeth felt bullied, outnumbered, rushed, stressed, and anxious. She did not like the way that James had made a unilateral decision without her input and had immediately contacted his lawyer. She did not want dueling emails to go back and forth. She did not want to run up a legal bill at $400 per hour. She did not think that what he was proposing was balanced. James would be finished paying for soccer forever at the end of the season, but she might be obligated to pay for health insurance for the next 8 years. Elizabeth wanted to be empowered. After giving the matter some thought, she realized that she and James did agree on one core issue: they wanted to continue to share expenses in a fair and equitable manner.
So Elizabeth told her ex-husband that she wanted to sit down around a table with a mediator to jointly define the current issues regarding expense sharing and to then seek solutions together. Stay tuned for his reaction...
And, just a reminder that what happens in mediation stays in mediation. The names have been changed in this blog, and Elizabeth was happy for me to share her story.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.