Jan 10, 2022
Think Before You Sign!
I have witnessed many divorces during my practice. Divorce is not easy, even with the friendliest couples who want to make it “as amicable as possible”. As a divorce mediator, I facilitate discussions with couples and guide them to securing an agreement on how they will divide their marital assets and liabilities. In some cases there are couples that try to be “amicable” during their settlement negotiations and will acquiesce to terms just “to be nice” but might later regret their decision.
Christine Lombardo-Zaun, Esq., an attorney-mediator at Alpha Center for Divorce Mediation, discusses creating a settlement agreement and the process of negotiating property division.
One big issue with a settlement agreement relates to personal property. Personal property is anything you can pick up and carry with you. Examples of personal property are vehicles, clothing, furniture. Some couples will make a spreadsheet and detail every item they have in their possession and will attach the list as a schedule to the settlement agreement. Others will choose not to attach a property schedule to the agreement. Not listing personal property and how it will be divided can prove to be a point of contention in the future. Conversely, there are also potential issues with listing a property schedule as well. This is an issue that is rarely discussed and often overlooked because most parties are trying to focus on the bigger issues.
Take the example of a couple who elected to attach a property schedule to their settlement agreement. The schedule states what each person will receive. Their agreement also states that Husband has to have all personal property removed from the marital residence by December 31, 2020. The couple is friendly and amicable during the time of their settlement negotiation in early 2020. The mediator asks them for a deadline to have everything removed and they agree on December 31, 2020, which was not a lot of time given Husband moved out of the home in late November 2020. The mediator explained to the couple that once Husband is out of the house, the rest of the property now becomes Wife’s.
During settlement negotiations, Wife stated that if Husband discovered property that was still in the house after the deadline, that Wife would simply give it to him. However in early 2021 after the agreement was filed with the court, and the divorce was finalized, Husband started dating which made Wife angry. Husband realized that he did not get all of his items out of the house that were listed on the settlement agreement. Husband asked Wife for the items and Wife refused, stating that whatever was left in the marital home was hers now pursuant to the settlement agreement. Some of these items were sentimental items like Christmas ornaments and children’s keepsakes, and even some wedding gifts.
Most people know that the settlement agreement is an enforceable document by the courts. It is a legally binding contract. However, what most people do not understand is the process one must go through to enforce that contract. If Husband wanted his items, he would have to sue Wife by filing a complaint with the court in which they filed. He would then have to pay the filing fee and will have to serve Wife to show the court she received the complaint. Then a court date would be scheduled. It could be weeks before a hearing is scheduled. The couple will then go before a judge and will have to argue why Husband is entitled to the property. The outcome will depend on the court, the location, and the judge. The reality is that there is a good chance that Husband will not get his property. He is now left feeling angry and resentful toward his ex-wife.
What if the property was something of little value? It would weaken Husband’s case and would probably not be worth Husband’s time, energy, and expense to fight for the property. The bottom line is now he is stuck not getting certain items. What if these items were of special value? He has now lost the chance to get them unless Wife has a benevolent moment and agrees to give him the property.
The point is that if you are in the process of negotiating property division, think long and hard about everything you will need. Some parties move out quickly and do not have time to take everything. Before you leave the house, you should walk around the house and take pictures or make lists of everything in each room. Make a list. Yes, everything. Inevitably, things get left behind, so it is really important that you secure all of your important possessions first. You can make a spreadsheet and have a column for Husband and for Wife.
Get everything you can out before the agreement is signed. Once the agreement is signed, couples can change their minds on things upon which they agreed. Some think this is when the divorce is final and so they might not care what the agreement dictates. As noted above no judge is going to want to watch people litigate over Christmas ornaments. It is time consuming and arduous to list all your personal property but by taking that inventory and by taking what is yours before you sign the agreement, you are more likely to be less disappointed and less resentful if some items are left behind.
Alpha Center for Divorce Mediation