Negotiating, Drafting, Modifying, and Enforcing Marital Settlement Agreements

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Negotiating, Drafting, Modifying, and Enforcing Marital Settlement Agreements

a. Obtaining Full Financial Disclosure

Probably the best tool for tracking down cash and other hidden assets are tax returns. This is because even a spouse who is attempting to hide assets or income through their business was probably not considering such action seven, five, or even three years ago. The first line of 1040 can be important because it provides a social security number which can be used for other searches. The W-2’s for the spouse as an employee can also be important. How does the past compare to the present? Bank Statements and Credit Cards can also prove to be equally valuable. There are several key things to look for in this regard. Do deposits match invoicing or account receivable? Are wages to relatives or close friends comparable to others performing similar tasks? This can be common where there is an anticipation of the funds being gifted back later. Do known expenses not being paid out of any account signify cash transactions? Were abnormal bonuses paid out? Stock options? Do you know of personal use of company assets or perks? What is the value? Are there any transfers or deposits from unknown accounts? Do check registers or cancelled checks show previously unknown accounts? Are regular customers now late with payments delaying income? Has there been a sudden increase in liabilities or loans? An expert’s cash flow analysis may uncover the answers to many of these questions. Hiring a forensic accountant or private investigator can also help to uncover hidden assets. You can also try to talk to other witnesses who may have an idea of where hidden income is coming from, such as business partners.

b. Tracking Undisclosed Assets: Tips and Tools

The difficulty with cases involving alleged hidden assets is avoiding the assumption that hidden assets do, in fact, exist. When seeking hidden assets, it is first necessary for investigators (whether it be one of the divorcing parties, the attorney, or paralegal) to recognize the underlying factor that the possibility of hidden assets must exist before hidden assets can exist. Investigating under the sole assumption that hidden assets exist can result not only in wasted time and costs but also the risk of discovery abuse, such as placing an undue burden on the opposing party (OP). Therefore, the underlying mindset for investigators should always seek the answer the question, “Is it possible that hidden assets exist?”

Whether it is known or merely suspected that the opposing party may be hiding assets and/or accounts, the process should begin by asking the client questions in order to establish a “profile” of the OP. Important questions include, but should not be limited to:

· Does the OP own their own business/self-employed? This is an important factor because it is often easier and in some cases more likely for an individual that owns their own business or is self-employed to hide assets or maintain offshore accounts.

· Please describe the lifestyle you (the client) and OP live or lived. The OP’s lifestyle, or change in lifestyle, can also be an indicator of the possibility of hidden assets/accounts. For example, the OP may make expensive purchases (i.e., cars, homes, etc.) in an attempt to squander funds from hidden assets/accounts throughout the divorce process.

· What financial records/documents do you have in your possession and what accounts do/did you share with OP? Answering this question at the onset will be helpful once the discovery process begins so the attorney/paralegal will know what documents to request and where to look.

· Do you remain in contact the OP, and if not, do you know their home and work address? While this question may be basic, it is important to maintain a good idea of the OP’s whereabouts in case they attempt to leave town (not uncommon in cases involving hidden assets/accounts).

Collecting basic information about the OP before beginning the discovery process is helpful and will aid you throughout the discovery process. Start with an initial checklist of background of the OP, such as place of employment, date of birth, social security number, and the individual’s last known address. Also consider collecting information regarding the identities of the OP’s close friends and relatives. This can often come into play because they will transfer or hide assets in those individuals’ names in an attempt to avoid detection.

The three primary sources with regards to the discovery process will be tax documents; financial documents including bank and credit card records, insurance policy information, retirement plan documentation, and any investment records; and email & text records. Of course, the relevant discovery requests will vary from case to case but this is a broad overview of the common sources for discovery of hidden assets and is similar to discovery in a standard divorce case. Each of these sources and specific discovery tactics will be analyzed more in-depth throughout the rest of the presentation.

It is also important to point out other resources which may be useful in a case with hidden assets, specifically forensic accountants and private investigators. While they may be costly, utilizing such resources may be extremely helpful, depending on the complexity of the case. Forensic accountants are especially helpful and often necessary when analyzing tax and financial documents for potential hidden assets.

There are several Tax Forms (other than the 1040) that may or may not be applicable. It’s important to know the standard IRS forms required for offshore asset reporting and their purpose. Other than the standard 1040, there are 7 IRS forms applicable to offshore assets:

· FBAR (Foreign Bank Account Reporting ) Form : TD F 90-22.1 (Prior to 2014, FinCEN Form 114 (Present) are required for U.S. citizens who have foreign bank accounts;

· Form 8938-required under the Foreign Account Tax Compliance Act for individuals who own certain foreign financial accounts or assets with a total value of $75,000 or more at any time during the tax year.

· Form 3520-reporting requirement for U.S. individuals who receive a foreign gift or bequest valued at more than $100,000 from a foreign individual or estate.

· Form 3520-A-required reporting of a foreign trust with at least one U.S. owner to provide information such as the owners of the trust, the value of the owners’ interest, and the FMV of distributions (if any).

· Form 5471-Requied for U.S. citizens and residents who are officers, directors, or shareholders in Certain Foreign Corporations (CFC).

· Form 8621-Required information return by a U.S. citizen or resident that is a shareholder of a Passive Foreign Investment Company (PFIC) or Qualified Electing Fund (QEF).

· Form 8865-Required return of U.S. persons with respect to Certain Foreign Partnerships.

However, requesting these tax forms during discovery, either from the individual or the IRS, is only effective if they have in fact been filed. Individuals with hidden assets typically do not adhere to tax reporting and filing requirements, hence the hidden classification. Therefore, requesting these tax forms is only the starting-point. These can be helpful because hidden assets are typically under a false name or entity but the individual is still likely to receive notifications to their personal email or phone. Resources such as a forensic accountant or a private investigator, while helpful, can also become very costly. Using such resources is primarily recommended in situations when it is known that OP has hidden assets in order to better find them.

The key sources of hidden assets include cash-either actual cash or cash converted into property (common method of hiding assets). The rationale of hiding assets is typically to convert an individual’s income, wealth, etc. into forms that are either difficult to discover or perceived to not be of significant value. Assets such as cars and homes are more obvious forms of property with perceived value, but in some cases client may not be aware as to the OP’s possession of such items. Somewhat to the contrary, clients may be aware of various investments, insurance policies, or memorabilia but not necessarily the value of those assets. Either way, these assets, no matter how obvious they might seem, should be considered when beginning the discovery process.

In some cases, assets may be overlooked rather than hidden-that being said, the OP is unlikely to voluntarily disclose such assets. Therefore, it is important to keep an “open-mind” throughout the discovery process; whether through document request, depositions, or interrogatories, consider assets that may be overlooked:

· Stock Options & Restricted Stock

· Capital Loss Carryover

· Cemetery Plots

· Collections or Memorabilia

· Intellectual Property

· Retained Earnings

· Credit Card Reward Points

· Country Club, Golf Course and Other Memberships

All of these examples may easily get overlooked but potentially carry significant value.

c. Best Practices and Approaches to Negotiating the Agreement

Achieving a settlement agreement can be particularly difficult in family law cases. Often, the parties’ emotions will provide a barrier to an otherwise acceptable property and custody agreement. You can, however, increase the chances of settlement by doing your homework. This means gathering adequate information from the beginning. Your first source of information will be your client. Be sure to listen to them carefully to identify what issues are most important to him or her. Then, as your case begins to take shape, probe for additional pieces of legally relevant information. Once you have exhausted the information your client can provide, consider the opposing party and perhaps third parties.

On this note, two Rules of Professional Conduct to bear in mind are as follows:

Rule 1.4 Communication :

(a) A lawyer shall:

1. Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

2. Reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

3. Keep the client reasonably informed about the status of the matter;

4. Promptly comply with all reasonable requests for information; and

5. Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.


A lawyer shall act with reasonable diligence and promptness in representing a client.

While sometimes your client may already know what is important to the other side, use traditional discovery mechanisms to help determine what the major issues are for the opposing party. It can be impossible to reach a settlement agreement if you do not know what the issues are, the sticking points and what is at stake.

The conventional ways to obtain information in divorce proceedings are well known: (1) Interrogatories; (2) Requests for Production; and (3) Depositions. Typically, interrogatories are aimed at gathering initial information and facts that the opposing party could not recall without reference to particular documents. Interrogatories in conjunction with Requests for Production then serve to produce the traditional sources of information for a divorce attorney. Staples include:

(1) Bank Statements;

(2) Individual Tax Returns;

(3) Corporate or Partnership Tax Returns;

(4) Mortgage Statements;

(5) Rental or Lease Agreements; and

(6) Telephone Records.

Now, however, we have a broader array of materials with which we can target these traditional discovery tools. These new materials can be used for the same purposes. They include, but are not limited to:

(1) Home and Work Computers;

(2) Cell Phones and Tablets;

(3) Flash Drives and External Hard Drives; and

(4) Cloud Storage/Vendor’s Servers.

Keep in mind discovering all of the information in the world is no guarantee that your case will settle. However, solid preparation will only increase your chances of success at settlement or at trial later. It also allows you to better advise your client in terms of what are reasonable settlement parameters.

In many jurisdictions, pretrial or settlement conferences (or similar court dates) may be scheduled by the judge as a matter of routine, or a particular judge may only schedule them at the request of the parties. In either event, they provide for a meeting of the parties prior to trial. The pretrial conference may flush out procedural, evidentiary, or substantive issues. The realization of these issues and the looming cost of trial may help encourage both parties to settle. Indeed, the judge usually requires the parties to be present at the pretrial or settlement conference. If this is the case, the judge may be able to nudge the parties toward settlement. Even if the meeting does not result in a complete settlement, it may help narrow the issues moving forward. Consult your local rules because each jurisdiction may have their own local rules governing pretrial conferences. These rules may relate to the scheduling of the conference, prior communications, or possible orders granted by the court.

Many domestic cases will settle without having to go to trial. There can be many reasons for this: one party is not ready for trial, one party does not want to go through a trial, or the parties, apart from emotional discord, may actually agree or be willing to compromise. It is not a sign of weakness to discuss settlement. Each litigant may simply have their own timeline. They may need to cool down before they can honestly approach the topic of settlement. Or, they may need to be confronted with the less appealing prospects of depositions and trial. Remember, settlement has tangible benefits. It can certainly reduce legal fees, but also and perhaps, more importantly, it can allow the parties to reach their own agreement. Parties are more likely to be happy with, and correspondingly be more likely to honor an agreement that reflects their own free will. Therefore, it may reduce the need for future litigation. A judicial solution, while equitable, may not be ideal for either party. Many of the benefits of settlement particularly apply if there are children involved. Again, reaching a voluntary agreement allows the parties to tailor custody schedules to their own needs. Also, it can aid in the emotional healing of children by providing a resolution and a more ordinary schedule moving forward. Further, check your jurisdiction’s local rules pertaining to settlement conferences for timing, the possibility of mandatory discovery and attendance policies. The judge may also issue a trial date before or at the conclusion of the settlement conference. Many states have adopted or modeled the federal rules of civil procedure which direct pretrial conferences and scheduling management under Rule 16.

Case management conferences (as they are called in some jurisdictions) can also serve as a settlement opportunity. They provide an early opportunity for the parties to meet together before the judge. If nothing else they help keep the case organized and moving forward to either settlement or trial.

In preparing for settlement, it is very important to create a checklist of possible concerns. Further, as a major common issue in settlement is the disposition of debts and assets, it can be a good idea to create an excel spreadsheet with all assets and liabilities listed. This can enable you to quickly realize financial impact of a proposed agreement.

Of course, though, there can be consequences to these decisions that reach far beyond the dollars and cents immediately presented on a worksheet. That is one reason to be particularly cautious with courthouse settlements. True, you want to reach an agreement when a deal can be struck, but be wary of hidden agendas and the long term consequences brought about by a heat of the moment deal. Additionally, you do not want your client to feel as if they were pressured into a deal. This will lead to later dissatisfaction and make litigation more likely in the future.

Additionally, just because an agreement is oral does not mean they will not be bound by it. In Baldridge v. Lacks, 883 S.W.2d 947 (Mo. App. E.D. 1994), an oral settlement agreement was dictated into the record. While the case was later overruled on other grounds, the wife was bound by an agreement that potentially gave her far less than what her share of the marital estate purportedly was worth.

On that note, it is always wise to follow up with a written agreement. Keeping an oral agreement tentative leaves open the possibility that a key issue accidentally left out can be subsequently addressed. While it is always possible the opposing party may later refuse to sign the agreement, if you are prepared for trial, you will not be afraid of litigating the issue.

Much like any pre-nuptial or post-nuptial agreement there should be a full disclosure of the assets in making a settlement agreement. On its face, partial disclosure by one spouse does not necessarily invalidate an agreement; however, it does prohibit your client from making an informed decision. To that effect, be wary of concealment by the other party and protect yourself from any claim of malpractice through due diligence.

Additionally, be sure your client has an understanding of basic concepts like marital property. The need for full disclosure operates both ways. Do not count on the ability to open up a judgment because you missed something. While agreements concerning custody, visitation, and child support are not binding on a court, other financial arrangements will only be disturbed if unconscionable. An unintentional misunderstanding about the character of a large asset could damage the value of your client’s settlement.

The following are merely suggestions for how to improve chances of a settlement that is good for both parties and leads to a better resolution for everyone involved, including minor children, there are ultimately many ways and different strategies that can be used for an effective negotiation strategy.

· Focus on the future: Divorce can be an emotionally traumatizing time in a person’s life and dredging up the past will not help the client move forward to a resolution for all remaining issues in a divorce action. Directing discussions to what needs to be done in the future and what solutions can help resolve current problems is an effective way to keep the client moving forward towards settlement. Clients will often want to focus on past harms and past issues in the relationship which can lead to roadblocks on the way to settlement.

· Avoid sensitive issues: When tension and emotions are running high it is important for the attorney to direct their client away from discussions of sensitive issues. This is connected to avoiding discussions of the past but can also include discussion of which parent minor children would prefer to be with, whether one spouse moved out or was kicked out, and who is at fault for the divorce. Discussion of these topics can be counterproductive to establishing a settlement agreement that is satisfactory for the client and can extend the length of time until settlement.

· Focus on interests, not positions: One way to easily use this strategy is by asking your client what their concerns are. This can take the discussion away from who is right or wrong and towards what their specific concerns are that could be resolved through negotiation. For instance, your client is in a gridlock on settlement negotiation with his spouse because he does not want to move out but by asking him what his concerns are he voices that he does not want to lose contact with his children. Discussion of this concern can help direct the conversation in a meaningful way to determine if there is a compromise to be made where your client can move out of the marital home while still maintaining a close relationship with his children that is satisfactory to both parties.

In cases that cannot be successfully resolved or mediated from the beginning, there are diverging views. But generally speaking, in contentious cases where parties do not view the situation similarly, my view is that “peace through strength” is usually the best way to get a client to their goal of a reasonable settlement in a family law matter.

This means that the client allows the attorney to issue discovery such as interrogatories or requests for production. Where other documents or evidence are needed to put forth the best case, this also means allowing an attorney to subpoena necessary documents and witnesses. Where expert testimony is needed to make the best case, (like an appraiser, forensic accountant, psychologist, etc.), then these individuals need to be retained early in the process.

By doing this, the opposing party to a case often realizes that settling is the best bet because you are prepared for a trial. While it might cost some money for a client on the front end, this can often grease the wheels in the settlement process – and get the other side to come off unreasonable positions – because they will worry that you are prepared. Getting information through discovery is also part of the “due diligence” that is required and can actually help the settlement process in many cases.

d. Key Tax Issues and How to Incorporate Them Into Negotiations

Your filing status is used in determining whether you must file a return, your standard deduction, and the correct tax. It may also be used in determining whether you can claim certain other deductions and credits. The filing status you can choose depends partly on your marital status on the last day of your tax year.

If you are unmarried, your filing status is single or, if you meet certain requirements, head of household or qualifying widow(er). You are unmarried for the whole year if either of the following applies :

· You have obtained a final decree of divorce or separate maintenance by the last day of your tax year. You must follow your state law to determine if you are divorced or legally separated.

o Exception. If you and your spouse obtain a divorce in one year for the sole purpose of filing tax returns as unmarried individuals, and at the time of divorce you intend to remarry each other and do so in the next tax year, you and your spouse must file as married individuals.

· You have obtained a decree of annulment, which holds that no valid marriage ever existed.

If you are married, your filing status is either married filing a joint return or married filing a separate return. You are married for the whole year if you are separated but you have not obtained a final decree of divorce or separate maintenance by the last day of your tax year. Note an interlocutory decree is not a final decree.

If you are divorced, you are jointly and individually responsible for any tax, interest, and penalties due on a joint return for a tax year ending before your divorce. This responsibility applies even if your divorce decree states that your former spouse will be responsible for any amounts due on previously filed joint returns.

In summary, parties in the middle of a divorce may file a joint return only if they are married at the end of the tax year (December 31) and both agree to the filing. Parties qualify as married even if they are separated as long as there is no final court judgment ending their marital status. A temporary order relating to child support, alimony, or child custody does not affect marital status. However, if the divorce is final as of December 31, parties may not file jointly-their filing status is either “Single” or “Head of household.”

Generally, maintenance payments are included in the gross income of the recipient spouse and they are deductible from the income of the payor spouse.

26 USCA § 215

(a) General rule. In the case of an individual, there shall be allowed as a deduction an amount equal to alimony or separate maintenance payments paid during such individual’s taxable year

(b) Alimony or separate maintenance payments defined – For purposes of this section, the term “alimony or separate maintenance payment” means any alimony or maintenance payment (as defined in § 71(b)) which is includable in the income of the gross income of the recipient under § 71.

(c) Requirement of identification number – the Secretary may prescribe regulations under which (1) any individual receiving alimony or separate maintenance payments is required to furnish such individual’s taxpayer identification to the individual making such payments, and (2) the individual making such payments is required to include such taxpayer identification number on such individual’s tax return for the taxable year in which such payments are made.

(d) Coordination with § 682 – No deduction shall be allowed under this section with respect to any payment, if by reason of § 682 (relating to the income of alimony trusts), the amount thereof is not includible in such individual’s gross income.

26 USCA § 71 – Alimony and separate maintenance payments

(a) General rule – Gross income includes amounts received as alimony or separate maintenance payments.

(b) Alimony or separate maintenance payments defined. For purposes of this section –

(1) In general: the term “alimony or separate maintenance payment” means any payment in cash if –

(a) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument,

(b) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under § 215,

(c) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and

(d) there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse,

(2) Divorce or separation instrument. The term “divorce or separation instrument” means –

(a) a decree of divorce or separation maintenance or a written instrument incident to such a decree,

(b) a written separation agreement, or

(c) a decree (not described in subparagraph A) requiring a spouse to make payments for the support or maintenance of the other spouse

(c) Payments to support children

(1) In general – Subsection (a) shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of the children of the payor spouse.

(2) Treatment of certain reductions related to contingencies involving child. For purposes of paragraph (1), if any amount specified in the instrument will be reduced –

(a) on the happening of a contingency specified in the instrument relating to a child (such as attaining a specified age, marrying, dying, leaving school or similar contingency), or

(b) at a time which can clearly be associated with a contingency of a kind specified in subparagraph (a) – an amount equal to the amount of such reduction will be treated as an amount fixed as payable for the support of the children of the payor spouse.

(3) Special rule where payment is less than amount specific in instrument. For purposes of this subsection, if any payment is less than the amount specified in the instrument, then so much of such payment as does not exceed the sum payable for support shall be considered a payment for such support.

(d) Spouse. For purposes of this section, the term “spouse” includes a former spouse.

(e) Exception for joint returns. This section and § 215 shall not apply if the spouses make a joint return with each other.

(f) Recomputation where excess front-loading of alimony payments (see Common Income Tax Considerations below)

(g) Cross references.

(1) For deduction of alimony or separate maintenance payments, see § 215.

(2) For taxable status of income of an estate or trust in the case of divorce, etc., see § 682.

Claiming children as a tax exemption is a matter that is determined by the Internal Revenue Code. In short, federal tax law provides that the parent with primary physical custody or the parent who the children live with for more than half the year are entitled to claim the children as a tax exemption. Interpreting this definition between parents who have a joint custody agreement can be difficult.

Generally, child support payments are not included in the income of the recipient spouse and are not deductible from the income of the payor spouse.

Relevant Case Law:

Thorp v. Thorp, 390 S.W.3d 871 (Mo. App. 2013): The trial court’s order requiring father to pay more in child support each month after he was awarded the dependent tax exemption. Over the course of a year, the father would pay $1,092 more in child support while recognizing a $3,800 tax exemption. Note: Tax exemptions are or may be a relevant factor in determining the money available to pay child support obligations

Jeffus v. Jeffus, 375 S.W.3d 862 (Mo. App. 2012): The trial court’s award to husband of federal dependency exemptions for minor children did not preclude offsetting wife’s dependent care expenses with a federal tax credit, in calculation of child support award in favor of wife. This award was consistent with federal law.

Scobee ex rel. Roberts v. Scobee, 360 S.W.3d 336 (Mo. App. 2012): A trial court has broad discretion in awarding tax dependency deductions and abuses that discretion only when its ruling is clearly against the logic of the circumstances before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.

Basham v. Williams, 239 S.W.3d 717 (Mo. App. 2007): In the absence of an agreement between the parties in a child support proceeding, it is appropriate for the trial court to determine and express which party is entitled to the available income tax dependency exemptions; the power, however, must be exercised in accordance with the provisions of the Internal Revenue Code. Note: the court cannot simply order that a noncustodial parent receive a child as a dependent for income tax purposes. The court must order the custodial parent to execute a written declaration in favor of a noncustodial parent that the custodial parent will not claim the child as a dependent.

e. Drafting Key Provisions – Do’s, Don’ts, Pointers and Sample Language

i. “Standard” Provisions

Depending on the issues in your case, the Marital Settlement agreement must address a variety of issues. Tax issues such as dependency deductions, tax credits, rebates and other tax considerations must be addressed. Future participation in mediation in the event of a dispute or the involvement of a parent coordinator for custody and parenting time issues are standard clauses as well as an agreement that the breaching party pays for the non-breaching party’s counsel fees in the event of a breach and a resulting enforcement application to the Court.

ii. Division of Marital Property

The agreement must identify each and every asset and debt and allocate them. This includes real estate, mortgages, lines of credit, home equity loans, timeshares, investment property, credit cards, retirement assets, employment provided assets, student loans as well as ownership interests in a business.

iii. Child-Related Provisions

If children are involved, custody and parenting time must be considered and addressed. The parties must identify if they are going to share joint legal custody as well as the designation of the Parent of Primary residence and the Parent of Alternate Residence. A parenting plan needs to be specified and this plan should include a regular schedule as well as a schedule for holidays, vacations and other school breaks. The marital settlement agreement generally includes language which assures each parent’s continued right to access medical and health related records as well as school related records. Language is added to ensure each parent’s right to continue to be involved in the children’s school events and functions as well as extracurricular activities and sporting events. Any special circumstance or issue surrounding the children should be addressed in the Agreement. Child support, contribution to camp, day care, activities, extraordinary activities, private school tuition and costs, health insurance and unreimbursed health expenses needs to be addressed. The issues surrounding college should also be included such as the manner for the selection of college, the allocation of college tuition payment as well as the parties’ understanding as to whether loans will be secured to fund college. Life insurance is another issue that must be addressed as there must be enough insurance to secure both the child support and college contribution obligations. The definition of emancipation should be spelled out and any special needs of the child which would alter or delay emancipation must be considered.

In many states, parents are required to submit proposed parenting plans to the courts whenever they file documents related to child custody or visitation. This parenting plan can be challenging to parents – especially when they disagree on visitation or have other circumstances that affect their decisions. Parenting plans are designed to help parents who are not living together – either because of a divorce or because they were never married – create a stable and healthy environment for their children by arranging regular visitation with both parents.

Parenting plans should consider the best interests of the child above all else and must include specific information that is relevant to the case including:

· Child custody and visitation, including holiday schedules

· Decision-making rights and responsibilities

· Dispute resolution methods

· Educational and extracurricular expenses, including college

· Child care expenses

· Healthcare costs

· Exchange locations and transportation costs

· Claiming the children as income tax deductions

If both parents have reached an agreement on custody and visitation, and have created a parenting plan that they agree on, the case will probably be a lot easier. But note that informal agreements are not enforceable until a judge signs a judgment ratifying that agreement. This means that either party can choose to renege on any informal agreement not court approved.

Parenting plans should be made with the best interests of the children kept in mind. To avoid conflict later on down the road and to maintain expectations for children, parents should come to agreements on how to handle the more “teenage” like experiences. For example, getting a car is a big deal for a teenager. However, it is not fair to a child to only be allowed to drive at mom’s house, but not at dad’s, or vice versa. Rather, parents should come to an agreement on driving rules and not limit the driving privileges to when the child is with the parent that purchased their car. There are also the tougher decisions parents need to make. Will children under the age of 18 be allowed to get tattoos and body piercings? What are the rules on curfews and substance use? Will tobacco be allowed? These are just some of the agreements parents need to come to. Any repercussions assigned to say things like drinking alcohol or missing curfews also need to be agreed upon and enforced in the same ways at both parents’ homes. In general, the more thought that is put into co-parenting now, the better. The more clear and concise, the easier it is for the children and the less of a chance of arguing later on down the road.

While the laws vary by state, legal custody refers to the legal authority to make major decisions on behalf of the child. Examples of major decisions include: where the child will go to school, the type of education, the form of religious upbringing, and non-emergency medical decisions. Legal custody options generally include sole legal custody and joint legal custody. The parent who has sole legal custody generally has the final saying in making major decisions on behalf of the child. These include decisions regarding education, religion, and medical. A parent having sole legal custody still has to confer with the other parent, but they have the ultimate decision-making power. Joint legal custody means that both parents have to agree when it relates to making major decisions for the child. If the parents cannot agree, they typically have to go to a mediator. It should be noted that parents can potentially share “joint legal custody” without having “joint physical custody.”

Even if the parents will have joint legal custody of the minor children, the following provisions may help clarify what each parent can or can’t do.

· How and when parents must confer. In exercising joint legal custody, the parents will share in the responsibility and confer in good faith on matters concerning the health, education, and welfare of the children. The parents must confer in making decisions on the following matters: [ ] Enrollment in or leaving a particular private or public school or daycare center; [ ] Participation in particular religious activities or institutions; [ ] Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy; [ ] Selection of a doctor, dentist, or other health professional (except in emergency situations); [ ] Participation in extracurricular activities; [ ] Out-of-country or out-of-state travel; [ ] Other (list). In all other matters in exercising joint legal custody, the parents may act alone, as long as the action does not conflict with any orders concerning the physical custody of the children.

· What happens if consent is not obtained. If a parent does not obtain the required consent of the other parent to the decisions: He or she may be subject to civil or criminal penalties. The court may change the legal and physical custody of the minor children. [ ] Other consequences that should be imposed.

· Should one parent have a special decision-making designation. The {party name} will be responsible for making decisions regarding the following matters: [ ] (List). Each parent will have access to the children’s school, medical, and dental records and the right to consult with professionals who are providing services to the children.

· Access to records about the children. Each parent will have access to the children’s school, medical, and dental records and the right to consult with professionals who are providing services to the children.

· Health-care notification. [ ] Each parent must notify the other of the name and address of each health practitioner who examines or treats the children; such notification must be made within (specify number): days of the commencement of the first such treatment or examination. [ ] Each parent is authorized to take any and all actions necessary to protect the health and welfare of the children, including but not limited to consent to emergency surgical procedures or treatment. The parent authorizing such emergency treatment must notify the other parent as soon as possible of the emergency situation and of all procedures or treatment administered to the children. [ ] Both parents are required to administer any prescribed medications for the children.

· School emergency contact notification. Each parent will be designated as a person the children’s school will contact in the event of an emergency.

· Name used by the children. Neither parent will change the last name of the children or have a different name used on the children’s medical, school, or other records without the written consent of the other parent.

· Other. Any other provisions concerning the health care, education, and welfare of the children that should be added to keep things going smoothly between the parents, such as:

o Tattooing, Body Piercing, and Permanent Cosmetics. Neither parent will or allow others to permanently change the appearance of the body of the children, including but not limited to body piercing, tattooing, branding, scarifying, permanent cosmetics, and other cosmetic procedures, without the notarized written consent from the other parent.

§ “Tattooing” means to insert pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, to produce an indelible mark or figure visible through the skin.

§ “Body piercing” means the creation of an opening in the body of the child for the purpose of inserting jewelry or other decoration. This includes, but is not limited to, piercing of an ear (even a single opening), lip, tongue, nose, eyebrow, or navel.

§ “Permanent cosmetics” means the application of pigments to or under the skin of a human being for the purpose of permanently changing the color or other appearance of the skin. This includes, but is not limited to, permanent eyeliner, eye shadow, or lip color.

o General Appearance. Excluding routine grooming, neither parent will or allow others to alter the child’s appearance in a manner that extends into the parenting time of the other parent, including but not limited to cutting or dying of the hair or dying or coloring of any other part of the body.

The best parenting plans are adapted to the schedules of the parents and take into account the needs and activities of the children. If one parent has weekends off from work and the other does not, then each parent could have the children on the days that parent is not working. If the children regularly have a sporting event on a day that one parent cannot transport, then the children could be with the other parent. Although the most common regular routine is based on a two-week cycle, if one parent has a history of not exchanging the children as agreed or ordered, and if it may be necessary to use law enforcement for the return of the children, a monthly cycle is strongly suggested. The following are sample schedules that could be used as a regular routine that the parent’s most commonly follow in exchanging the children.

Week based cycles:

· Every weekend (a one-week cycle): The low-time parent has the children overnights from Saturday morning to Sunday evening, every weekend.

· Alternating weekends (a two-week cycle): The low-time parent has the children overnights from Friday evening to Sunday evening, every other weekend. A mid-week evening with the children for the low-time parent may be appropriate toward the end of the week just before the other parent’s weekend.

· Alternating extended weekends (a two-week cycle): The low time parent has the children overnights from Friday after school to Monday return to school, every other weekend. A mid-week overnight with the children for the low-time parent may be appropriate toward the end of the week just before the other parent’s weekend.

· 2-2-5-5 (a two-week cycle, equal parenting time): The children spend two days with one parent, two days with the other, five days with one parent, and five days with the other, then the cycle starts over and repeats. Another way to describe this parenting plan is that one parent has from Monday to Wednesday, the other from Wednesday to Friday, and the parents alternate extended weekends from Friday to Monday.

· Alternating weeks (a two-week cycle, equal parenting time): The children spend one week with one parent and the next week with the other, then the cycle starts over and repeats.

Month based cycles:

· 1st-3rd weekends (a one-month cycle): The low-time parent has the children the first and third weekends of each month.

· 2nd-4th-alternating 5th weekends (a one-month cycle): The low-time parent has the children the second and fourth weekends of each month, and, in months that have five weekends, the parents alternate the fifth weekend of the month.

· 1st-3rd-5th weekends (a one-month cycle): The low-time parent has the children the first, third, and, in months that have five weekends, the fifth weekend of the month.

Physical custody refers where the children live the majority of the time. This is sometimes referred to as “residential custody.” Types of physical custody include sole physical custody and joint physical custody. With sole physical custody, the child physically resides at one location. In most cases, the non-custodial parent is awarded generous visitation rights, including sleepovers. Joint physical custody is often called “shared custody.” In this situation, the child/ren spend substantial time with both parents. The division of time spent at each location is approximately equal, although not necessarily fifty-fifty.

Parent-child visitation allows parents who do not have physical custody to see their children on a regular basis. Types of visitation include unsupervised, supervised, and virtual visitation. Unsupervised visitation is the most common type of visitation. Parents with unsupervised visitation are generally able to exercise their visitation how and where they please. Courts order unsupervised visitation the vast majority of the time. In some cases, the courts will order supervised visitation, which means that another responsible adult or supervisor must be present for the duration of the visit. Depending on the circumstances, the courts may allow the non-custodial parent to select an individual to serve as the supervisor–such as a grandparent or other relative. In other cases, the parent and child must meet at specified location so that an appointed social worker or court-appointed designee can supervise the visit. This occurs in cases where the court believes that unsupervised visitation would impair the emotional health and physical development of a child. Virtual visitation typically takes place over the Internet and may include video chatting, instant messaging, and email. This is a new form of visitation becoming more common.

If sole physical and legal custody is awarded, that parent gains has substantially more physical time and has the ability to make final decisions for the couple’s child. The “custodial parent” typically has much more control over parenting decisions, from day-to-day parenting choices to deciding where and how a child will be educated. These arrangements are most common when the parents live far apart, do not communicate well, or when one parent has been deemed unfit. Though the child will usually live most of the time with the parent who has sole custody, visitation schedules and parenting plans will provide for time with the other parent.

In a shared parenting arrangement, on the other hand, both parents share decision making responsibility for the child. In some states, both parents will be designated as the “residential parent and legal custodian.” Under most shared parenting agreements, parenting time is shared more equally which may also result in a proportional decrease in child support payments.

Often, the terms shared parenting and joint custody are used interchangeably. However, in a true joint custody situation, both parents split parenting time in roughly proportionate shares, which can be difficult for both children and parents in some instances in terms of scheduling and logistics. Shared parenting, however, generally does not require a fifty-fifty split in parenting time. Though more equal parenting time is common, one of the primary attributes of shared parenting is the right to share equally in decisions regarding the child.

Several state laws presume that shared parenting is in the best interests of the child. All states allow for shared parenting plans when both parents seek them and the court approves. For shared parenting to work, both parents should be able to communicate well with each other in order to make mutual decisions about their child.

When a parent wishes to move to another state with her children, he or she may have to get the other parent’s permission before the move. If the other parent objects, her or she may need a judge’s permission instead. Failure to do so can have serious consequences. Parents who move without the court’s permission may be putting their relationship with their children in jeopardy.

Most states have a Relocation Notice Statute. According to the Missouri statute, any parent who wants to relocate must send a certified letter to other parent 60 days before the proposed move. The certified letter must contain certain information to be valid:

· Where you intend to move: This includes the address and telephone number if you know them. If you do not know them, you must provide the city and state, as well as the date you intend to move.

· A brief statement of the reason you want to move your children: Many parents state reasons such as finding higher paying jobs that will allow the children better lifestyles as a result.

· A proposal for a new schedule of custody or visitation: If custody and visitation will be affected, a reasonable schedule should be outlined in the letter.

Because the requirements for a relocation letter are stringent, any parent thinking of sending a letter of proposed relocation must really ensure with legal counsel that the letter they are sending meets the requirements before sending such a letter.

Upon receiving a letter like this from a child’s other parent, there is only a limited time, usually around 30 days, to object. To do so, the party must file a formal objection with the court, which prevents the parent from moving unless the judge holds a hearing on the matter. Failure to do so may mean a waiver of the right to object to the move. If the child’s parent has moved without permission, it may be possible to get an emergency pick-up order to have the child brought back. At the hearing, the moving parent would need to show that the proposed move is in good faith, is in the best interests of the children and that the other parent can still receive frequent and meaningful contact. This is often a tough burden for a parent to bear and courts will frequently not allow a parent to move out of state without good reason.

Many parents who go through a divorce and child custody dispute are left feeling defeated when everything has been finalized. This is especially true for parents who did not receive primary custody. But it’s important to remember that a finalized child custody agreement is not necessarily a permanent one. As time goes on and circumstances change, child custody orders can be modified. This can occur either as the result of a consent order or a motion filed with the courts.

The consent order is essentially an agreement to change the current agreement. Say, for instance, that a child has been living primarily with his mom. As he enters into his teenage years, he decides that he would prefer to live with his dad most of the time. His mom and dad may discuss the matter and agree to honor his wishes. They will formalize their new arrangement in a consent decree showing that both parties agreed to make the change. The consent decree is then as enforceable as the original custody agreement.

The other way to modify a custody agreement is through the courts. One parent can file a motion to modify the custody agreement, often seeking sole custody or primary custody. In order to modify the current arrangement, however, the parent filing the motion has to demonstrate that such a modification is warranted due to a “substantial change in circumstances.” Any changes in a co-parent’s household that could put the children in danger or harm them would be a good reason to seek a modification. For instance, a parent may learn that their former spouse is abusing drugs or alcohol (or has relapsed after previously seeking help for substance abuse). As another example, a parent may learn that their co-parent has started to become violent or otherwise abusive toward the children. If a co-parent has experienced a major change in job or working hours, this could warrant a modification of custody as well. For instance, it probably doesn’t make sense for a co-parent to maintain primary custody if he or she has to regularly work overnight shifts and weekends. Minor children need a parent to be there for most of the hours that they are out of school. Finally, a major relocation could warrant a change in custody. If an ex-spouse decides to move out of town or out of state, you may be able to seek a change in the custody agreement.

Courts differ on what they consider a substantial change. However, below are a number of examples that could be considered substantial changes leading to a change in the previous order:

· Geographic move. If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order. In that situation some courts switch custody from one parent to the other. Most judges, however, ask the parents to work out a plan under which both parents may continue to have significant contact with their children. The Court will carefully examine the best interests of the child and make a decision about which parent should have custody. In some states, if a custody order has been entered, in the event one parent intends to relocate their residence, they must provide written notice to the other parent that meets certain statutory requirements prior to their move. If the parent moving fails to provide this notice prior to their move, they may be ordered to return the children to the state (if they have moved out of state), or they may jeopardize their custodial rights under the previous order.

· Change in lifestyle. A parent can obtain a change in a custody or visitation order if substantial changes in the other parent’s lifestyle threaten or harm the child. For example, if a custodial parent begins leaving a young child unsupervised or fails to get the child appropriate medical treatment, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or only under the watch of a court appointed supervisor).

· The Child’s desires. Older more mature children can have some input in deciding with which parent he or she will live with primarily. However, although that child’s wishes can be considered, the child does not have a right to ultimately “choose” which parent to live with. It is also ill advised to encourage a child to request a change in custody as oftentimes the court will view this as placing undue pressure on the child. This behavior will reflect badly on the parent pressuring/encouraging the child and could affect that parent’s custody and visitation rights

· Deviation from custody schedule. In some cases, the parties may have deviated from the custody order to such an extent, and for a long enough time, that a modification may become possible to simply make legitimate what the parties have been doing. For example, if one party received sole custody, but the parties have been in reality exercising fifty-fifty custody for a long enough period of time, a court may entertain a modification to formalize what the parties have been doing.

Sadly, when parents decide to get divorced, the parents of the non-custodial parent often find it difficult to keep in touch with their grandchildren. More and more, they have been going to court to protect their visitation rights and their relationships with the grandchildren they love. In Missouri, grandparents often face an uphill battle when enforcing these visitation rights. They need a strong and forceful attorney who knows the law – someone who does not hesitate to fight hard for them.

There are many grandparents who seek child custody or visitation in special circumstances, like when a parent is incapable of properly caring for a child due to alcoholism, addiction, mental illness or family violence. These grandparents may be entitled to increased custody or visitation.

Missouri law supports contact between grandparents and their grandchildren in certain situations, like the ones listed below:

· When the parents of the child have filed for divorce, grandparents have the right to intervene solely on the issue of visitation rights. Grandparents also have the right to file a motion to modify the original divorce decree to seek visitation rights.

· When one parent of the child is deceased and the surviving parent denies the grandparent reasonable visitation rights, grandparents may take legal action.

· When the child has resided in the grandparent’s home for at least six months within the 24-month period immediately before the filing of the petition for grandparent rights, grandparents can file a lawsuit to protect their relationships with the children involved.

· When the grandparent has been unreasonably denied visitation with the child for more than 90 days, (unless the natural parents are legally married to each other and are living together with the child) the grandparent may file for visitation.

· When the child is adopted by a stepparent, another grandparent or other blood relative, grandparents can file lawsuits to protect their rights.

Determining whether or not grandparents are entitled to visitation can be complex. The court sometimes requires a home study performed by a court-appointed investigator. The court may also appoint a guardian ad litem to help determine the best interests of the child. It may also consult with the child regarding the child’s wishes. The court will grant grandparent visitation only if it is in the child’s best interest. A court will deny grandparent visitation if the visits will endanger the child’s physical health or impair the child’s emotional development. Like with other custody cases, the court may appoint a guardian ad litem to help determine the best interest of the child. A guardian ad litem is an attorney appointed by the court to represent the child. The recommendation of the guardian is often key in these cases.

Situations may arise that call for custody arrangements outside the normal parent-child relationship. There are a variety of cases involving third-party custody – that is, representing a client other than a biological or adoptive parent who seeks legal authority similar to that of a parent.

Child custody agreements are some of the most important parts of the divorce decree. They provide the framework for stability and guidance children need as they grow up, and they ensure that you can spend meaningful time with your children – something that goes beyond day-to-day living needs. Holidays are an opportunity for each parent to instill traditions, visit extended family members and create lasting memories. Your child custody agreements should outline holiday visitation arrangements to avoid arguments or custody violations later on. Since child support payments and visitation schedules are two separate agreements in divorce proceedings, child support typically does not change during holiday visitation. Of course, the definition of holiday to each individual may vary. For example, if the child simply spends a 4-day weekend with a noncustodial parent, support payments likely would not change. If the child spends months with the noncustodial parent, like during a summer break from school, you and your spouse may need to work out a modified support schedule to reflect the more significant change in living arrangements. If one parent has not been making court ordered child support payments, the custodial parent may feel inclined to withhold visitation rights. This is not legal. One parent cannot violate custody arrangements because of issues with child support. It is always best to fulfill your obligations in child custody and child support arrangements. If you are unable to, or if your spouse is violating an agreement, make sure you work with an attorney as soon as possible.

Exchange location in a child custody schedule is often over-looked in a child custody case. Exchange locations are simply where the parties meet up to exchange children. This can be a simple issue in some cases, but in others, the parties might end up disagreeing about where to meet up. In fact, in some cases, it can be a very heavily litigated issue. On the surface, this seems like an easy issue. But, consider the following possibilities for exchanging the children between mother and father in a custody case:

· Do the parties choose a half-way point between the residences at a designated location to exchange the children?

· Do the parties agree that the person ending their custody time will drop the children off at the residence of the parent who is beginning their custody time?

· Do the parties agree that the person who is getting custody of the children goes and picks up the children from the other parent?

· Does one parent do all the picking up and dropping off of the children?

· Do the parties agree to meet up at the school where the parents simply drop off and pick the children up at school when it is in session?

· What about long distance situations where the parents live so far away that the children have to fly between the residences of the parents? How will the children be put on a plane and who pays for the cost of travel?

· What about severe cases where the parties may need to meet at a police station or at a family court exchange center, for example, to exchange the children because the parties fear that exchanges will not be peaceful?

The best outcome is when parties can be reasonable and come up with something that works for them and their children, and most of the time, this is the case. However, there are going to be those cases where parents simply cannot agree, in which it becomes heavily litigated. These heavily litigated cases can come from parties having different views on custody in a contested custody case or where parties might have concern about drive-time, traffic, transportation costs or just have general anxiety over seeing their ex-spouse, or the other parent to their child, at a custody exchange. Either way, in cases where the parties can’t agree, the court ultimately has to make a decision. This issue illustrates how complex child custody cases can be.

iv. Alimony and Other Clauses

If alimony is involved in the settlement, the Agreement must provide the amount to be paid and the duration of the payment. Circumstances of when it is to end or be revised must be addressed. Provisions regarding modifiability or non-modifiability are also important elements to consider. Life insurance to secure the alimony must be included in the Agreement.

f. Tips for Addressing Common and Complex Issues in Marital Settlement Agreements

The following are some common tips and suggestions for those drafting marital settlement agreements.

So-called “boilerplate language” is there for a reason. Review and edit it as necessary. Boilerplate language is typically standard language or paragraphs that are found in most, if not all, agreements of a particular type. For example, boilerplate language may address what should happen if certain circumstances arise or where the proper jurisdiction is for any future litigation. The boilerplate language also could provide certain disclosures that are necessary under the law. Even though this language may seem to be irrelevant at the time of entering into the agreement, it adds an extra layer of protection if future problems arise. Sometimes the presence of the language can make the difference between whether the agreement is valid or void.

Number the pages of the document and have the parties initial each page. By numbering and initialing each page of the document, it greatly decreases an individual’s ability to contest the accuracy of the document in the future. If each page is initialed, it is much harder, for example, for someone to argue that a page was taken out or inserted after the document was signed.

Include real deadlines for respective tasks and consequences for failing to meet those deadlines. Specific deadlines can eliminate headaches. After going through all of the trouble of negotiating an agreement, there is nothing worse than a resolution being delayed because one person is taking his or her time signing a crucial document or paying money. By setting a deadline and consequences for missing those deadlines, you can avoid these problems.

Place custody and/or support terms in a separate stipulation and order that will be filed with the court so that these agreements can be enforced. It is much easier to enforce a custody or support stipulation that is separate from a global divorce resolution. Even though it seems easier to have everything in one agreement, it is easier for the courts to interpret, review and enforce custody and support agreements that are separate documents.

Agreements outside of the Property Settlement Agreement will not be honored. In short, if you want a specific term of your agreement to be enforceable, you must make sure that the term is in writing in your Property Settlement Agreement. Simply because you believe that you and your spouse agreed to something during negotiations does not mean that it is enforceable, unless the term makes it into the final, signed version of the agreement.

Do not use unclear or ambiguous language. Someone who knows nothing about you or your case should understand the clear intent of the document. The easier the document is to read and understand without have to talk to you, your spouse or one of your attorneys, the better. Anyone should be able to pick up the document and understand what is supposed to be accomplished with the agreement. No one should have to ask for more background information or an explanation of the facts.

Remember to include indemnifications for debt or Internal Revenue Service liabilities. At the time that you are executing a settlement agreement, you may not even be considering future or past debts or obligations, especially if you have never had or do not know about problems at the time of entering into the agreement. By making sure that standard indemnifications are in the agreement, you can protect yourself from problems that may arise. On the other hand, if you know that problems exists, then these provisions are even more important to include and tailor to your specific situation.

Refinance debt out of joint names. When your divorce is finalized, you do not want to jointly own or be liable for anything together with your spouse, if at all possible. Pay off debt or have one party re-finance it into his or her own name.

Tie-up all loose ends, such as the arrangements for filing the tax return, splitting the refund or paying outstanding bills. The more loose ends that you resolve prior to finalizing the divorce, the better off you will be. Not only is it practically easier to deal with all of these issues as part of your settlement negotiations, but it also is emotionally and financially easier to try to resolve everything prior to resolving the divorce. Again, at the end of the divorce, you want to be able to move forward without being entangled with your spouse or having to continue to negotiate lingering issues with him or her.

Never negotiate and/or waive rights to something that is enforceable (equitable distribution) for something that is subject to change (child support). Child support is always modifiable. No matter how many agreements or promises you make with your spouse, either party can petition the court to modify child support based on a change in circumstances. However, you cannot go back and change a decision that you made when negotiating the equitable distribution. For example, suppose you and your spouse agreed that he could keep all of his retirement funds, if he paid you X dollars a month in child support. Then two years after you entered into the agreement, your spouse loses his job and gets a new job making half as much money. Your spouse could petition for and likely be granted a reduced child support obligation, yet he still would be able to retain all of his retirement benefits. Avoid this pitfall.

Be sure to remind clients it is best to have a parenting plan in place. That seems obvious, but it is surprising how often people try to limp along casually, “without running into Court.” Parents, if you are getting along, starting an action to get a spelled-out parenting plan doesn’t mean the Court will make you not get along. If you completely agree on a parenting plan for your children, you can usually submit one by “Stipulation” (agreement). The Court will review it for major flaws and will generally approve it. The judge won’t make you go to a trial if you don’t need to. Don’t be afraid of this process.

Make sure the agreement is as specific as needed. One of the common mistakes I see in parenting plans, particularly plans that are agreed to by parents who are getting along at the time the plan is created, is the phrase “Mother/Father shall have parenting time at such times as the parents are able to agree.” That phrase, in most circumstances, should be avoided. It provides you no structure, no relief when there is a dispute.

Make sure to include holidays in your parenting plan. Some form parenting plans provide a good list of the holidays that parents should think about defining in their parenting plans. These lists can help you not to forget holidays that are not as common.

Make sure you define what certain terms mean. How do you define Thanksgiving? Is it defined as Thursday at 8:00 a.m. until 6:00 p.m.? Until the next day at 8:00 a.m.? Is it the 4-day weekend from school? Is it something else entirely? If you just include language such as “Mother shall have Thanksgiving in odd years and Father shall have Thanksgiving in even years,” you’re missing information that could avoid about 75% of the conflict that could exist. Remember to be clear about what each holiday, each break from school, each regular exchange time, really means. Be thoughtful about what special days you want to be sure to define and which days you really are okay “letting lie” on the regular schedule. Overly-defined parenting plans tend to generate conflict simply by being hard to remember and often, are very intrusive in kids’ expectations of their regular schedules. Some items you may want to think about including on the list of dates that don’t specifically require definition or rotation: Monday holidays (other than the “biggies” like Memorial and Labor Days), Veterans’ Day, Parents’ Birthdays, even the children’s birthdays. For plans governing older kids, think about leaving out Halloween and 4th of July.

Include a plan for dispute resolution. The parenting plan needs to meet the needs of your family from birth to age of majority of your children. It’s just impossible to foresee every twist and turn of life. Especially when circumstances change, it may be necessary to edit the plan. Be sure to include not just that you will go to mediation before filing a modification action in Court (a widely-adopted provision in most parenting plans), but be sure you’ve stated who you’d mediate with (the Court’s mediation services or a private mediator) and who, or in what proportion you will each be financially responsible for the cost.

There are two lines of communication that need to stay open and protected: 1) communication between the kids and the non-scheduled parent and 2) communication between the parents. Include rules about how often and how you expect to be able to communicate with your kids (Daily? Every other day? Phone? Text?). Include rules about how often and how you expect to communicate with your co-parent about your kids’ events, illnesses, and general wellbeing (Weekly? Daily? Phone? E-Mail?).

A right of first refusal, or childcare provider of first choice, clause is an order that requires parents to contact each other to “babysit” if the scheduled parent is unavailable. This is a hotbed of litigation for two main reasons: 1) it’s very difficult to enforce – how do you really know when the co-parent is unavailable except by their self-report or the report of what is often a very young child?; 2) they are not typically well defined. If you are going to include one, make sure you define when the requirement will “trigger.” One option is to use a 4 or 6 hour rule to avoid a scenario when even a quick trip to the grocery store while the kids play with their friend at the next door neighbor’s house turns into a brawl over first offering the time to Dad. Also define whether grandparents or step-parents count as “caregivers” who would require a call to your co-parent before they could take care of the children.

Put any changes or deviations from the plan in writing. Police will not care that Mom and Dad traded weekends or that instead of picking up the kids at 4:00 p.m. from Mom’s house, Dad will now be picking the kids up at school when it ends for the day. Just put these changes in writing, preferably in an amended plan, but even an E-Mail will do, particularly for small or “one-of” type changes. By having something in writing means that there is a record of the change and that co-parents have some confidence that the other parent cannot unilaterally change it back.

g. Modification and Enforcement

Modification of a marital settlement agreement depends on the terms which are trying to be modified. Property division terms are rarely modifiable. Child-support and child-custody terms, however are almost always modifiable according to the courts perception of the best interests of the child. For alimony or maintenance, if the agreement itself includes a provision allowing a court to modify its terms then the answer is yes. Also, the court will modify if the needy spouse has become so destitute that he or she will become a public charge unless a modification is ordered.

The parties can specify in their separation agreement how they want the court to treat the agreement in the judgment of divorce. If the parties decide that the agreement will be incorporate and merged into the divorce, the agreement loses it separate identity upon the decree of divorce and the question is not whether the separation agreement can be modified, but whether the divorce decree can be modified. Generally, courts are much less likely to modify their own decree than they are to modify the private contracts of parties. However, if the parties elect to have the court incorporate but not merge the separation agreement in its decree, the court simply refers to the separation agreement in its decree and the separation agreement remains as an independent and non-modifiable contract. Assuming the courts have the power to modify, courts will exercise their power to modify where there is a showing of a substantial change in circumstances of a continuing nature that is not due to the voluntary action or inaction of the parties.

Enforcing an MSA must be done by filing a formal request or motion with the court. The spouse seeking enforcement will need to show the court how the other ex-spouse failed to follow the terms of the agreement. There are many reasons to ask the court to assist with enforcing a marital settlement agreement. Some common reasons include the following:

· Ex-spouse failed to make child or spousal support payments

· Ex-spouse failed to maintain health, dental or life insurance policies

· Ex-spouse has not paid for the children’s college education and expenses

· Ex-spouse is in default on a mortgage payment

Child custody and visitation modifications are a fact of life. After all, circumstances can change, financial security can shift, and it is not unusual for families to readjust as children grow and dynamics evolve. For all of these reasons, it is important to understand how to modify your existing child custody and visitation arrangement.

In general, child custody visitation modification can happen in two ways, creating a consent order or filing a motion to modify. The easiest way to modify child custody is to create a consent order between both parents, which alters the preexisting arrangement. This consent order will ensure that all changes are mutually agreed upon and enforceable. Alternatively, a child custody visitation modification can be obtained through the courts by filing a motion that demonstrates a substantial change in circumstances.

For a child custody arrangement to be modified there must be a substantial change in circumstances. The phrase “substantial change in circumstances,” is a significant factor when determining if a child custody modification is appropriate. Examples of qualifying changes can include major relocation, major change in vocation or hours, or major change in habits that may adversely affect the child (such as drugs and/or alcohol abuse). This standard is a general one and it is important to check your local state statues for modification standards in your state.

V. Divorce Mediation and Participation Agreements (with Samples)

A mediated divorce is when both parties agree to mediation meetings with a professional mediator who acts as a neutral third party to allow the couples to try and resolve the major disputes in a divorce proceeding. In general, mediation is not binding and the mediator does not recommend anything to the judge on behalf of either party. The two parties meet with a mediator who does not represent either of them. It is not uncommon for parties to have several meetings with a mediator in order to completely resolve all of the conflicts surrounding dissolution of marriage. Once the parties have come to an agreement on all terms, an attorney can then draft and file the petition for divorce in the proper jurisdiction. Once completed, the paperwork will have to be signed by a judge, either through a non-contested hearing or by affidavit.

Participating in mediation or arbitration may result in the parties forgoing proceedings in a formal court setting altogether. The financial costs to the parties may also be reduced if they are able to reach a settlement. Overall, the parties to the alternative dispute resolution have more control over the pace and nature of their issues than they might be afforded in the court system.

As outlined in most court rules, the agreements reached by the parties may not always be binding. Therefore, the parties may expend a great deal of time and resources and still walk away without their issues settled. Because the parties are allowed to dictate the pace at which these resolutions go on, it could be a lengthy amount of time before a final decision is reached. Additionally, if the parties are so far apart in their settlement goals, alternative dispute resolution may not be fruitful. There are also concerns as to whether parties who are on lesser ground as far as finances, education or sophistication will be more easily manipulated into unfair settlements than if the parties participated in formal court proceedings.

Mediation is a helpful tool in assisting clients to come to a settlement agreement. The process of mediation allows for both parties to openly discuss all of the issues surrounding their family law case in order to make important decisions voluntarily. During mediation a qualified mediator assists both parties to come to an agreement by discussing different options for settlement and helping each party to better understand the viewpoints of one another. Mediation sessions can be joint sessions where both parties are present or private caucuses where the mediator meets with each party individually. Unlike arbitration where the ultimate decision is outside of the parties’ hands, mediation allows the parties to come to an agreement together which leads to a more amicable situation.

The parties participating in mediation often select the mediator. Choosing a qualified mediator is important. The parties should consult local resources regarding whether or not there are special certifications available for family mediators and ensuring that a mediator with the proper qualifications is selected. Once a mediator is selected, each party needs to prepare for mediation. This could include consulting their attorney or just mentally preparing for the issues that need to be worked out. When consulting a client who is participating in mediation, it is important to explain to them any legal issues in the case and to have them understand the consequences involved if the mediation fails. The attorney should also explain to their client what role they will play in mediation, if any. In some mediation, the parties will have their attorneys present. However, in many cases, their attorneys are not present.

Prior to the start of mediation each party should be aware of the ground rules and what will be required of them during the mediation process. Some mediators have rules where they are not involved at all with the case. Many mediators will have their own rules, but the parties do have some say in the process. The attorney should discuss what documentation the client should bring to the mediation sessions as well as consult with the mediator for what they suggest to come prepared with to the sessions. This might include pay stubs, W2 forms, health insurance forms, day care bills, etc. Having the ground rules for the mediation in place, and in writing, along with proper preparation by both parties prior to the start of mediation will help ensure that the process is a positive one for your client. The attorney should also assist their client in understanding whether or not what is said in mediation is confidential, or what exceptions to confidentiality might apply to avoid things being used in court if the parties fail to mediate all of the issues in their case.

Some jurisdictions have taken voluntary mediation prior to litigation a step further by establishing local statutes that allow courts or mandate courts to order mitigation between the parties, especially in cases involving child custody and visitation issues. For instance, jurisdictions in Arizona, California, Delaware, Florida, Kentucky, Maine, Nevada, North Carolina, Oregon, Utah, and Wisconsin have established mandated statutes for the courts to order mediation. Other jurisdictions like Louisiana give the courts authority to order mitigation, but do not mandate it. When the court orders the parties to participate in mitigation, they are required to do so unless there are extraordinary circumstances as provided by state statute or jurisdictional rule.

Arbitrated divorces are when both parties agree to arbitrate the remaining issues in their divorce proceedings. This type of divorce has the parties meet with a neutral arbitrator, usually an attorney, who hears the issues in a divorce proceeding and resolves all outstanding issues between the parties. Arbitration is usually binding and cannot be appealed by either party. Arbitration acts as one way to avoid the lengthy process of going to court while still having a neutral third party decide on the issues.

In arbitrated divorces both spouses as well as their attorneys agree on an Arbitrator. The Arbitrator then sits down with both parties and is presented with all unsettled issues in the divorce. After this meeting the Arbitrator makes their decision with respect to all presented issues. This decision is usually binding and cannot be appealed. For instance, the Michigan Court of Appeals in Dick v. Dick, determined that an arbitration award cannot be set aside unless 1) the arbitrator or another is guilty of corruption, fraud, or used other undue means; 2) the arbitrator evidenced partially, corruption, or misconduct prejudicing a party’s rights; 3) the arbitrator exceeded the arbitrator’s power; or 4) the arbitrator refused to postpone the hearing on a showing of sufficient cause, refused to hear material evidence, or conducted the hearing to prejudice substantially a party’s rights. The Michigan court also determined that the custody of minor children is not outside the realm of what an arbitrator can make binding decisions about.

The Participation Agreement sets the tone for the team and the process. Some mediators will read through the whole agreement aloud at the first joint meeting. This is an opportunity to be present and think about what is being agreed to and asked of each participant in the team process.

The tenets of Collaborative practice are that it is based on honesty, satisfying the interests of participants, dignity, and respect. The process is focused on the future, meaning that the past will be discussed as necessary, but the overall work will be geared towards creating a future for the couple/family based on their goals. Honesty and open disclosure of information is crucial to the process. Rather than rely on the inefficient (and costly) “discovery” process of traditional litigation, the participants agree to share all relevant information voluntarily. This keeps cost down and ensures that everyone is on equal footing in any negotiations.

The Participation Agreement also discusses specifics of the process itself. Most Collaborative divorces utilize a Team model – in addition to attorneys, the couple also selects a Financial Neutral, Child/Family Specialist, and Neutral Facilitator/Coach to provide support in their area of expertise. These individuals comprise the Team of professionals who work through the Collaborative practice process to support the couple in their decision-making and moving forward toward their goals following the divorce.

In a Collaborative divorce, agreements are usually reached through are called “Joint Meetings” between various permutations of the team members. These meetings are opportunities for exchange of information with an eye toward reaching a (sometimes creative or out-of-the box) agreement that meets the goals of all involved.

Because both participants are agreeing to stay out of court and remove the threat of litigation from the divorce process, the Participation Agreement confirms that although a Joint Petition will be signed early on in the process, no documents will be filed with the court until a final agreement is reached (unless there are some extenuating circumstances and both participants agree that something should be filed with the court earlier).

The Participation Agreement also discusses in depth the procedure for withdrawal from the Collaborative process, and when that is warranted. Participants can be comfortable knowing that if something does happen that makes one or the other spouse decide to end the process, the other spouse will not be disadvantaged by that decision. The Participation Agreement also contains a “disqualification” provision, meaning that if the Collaborative process is ended before resolution of the divorce, none of the attorneys may continue to represent the participants. Additionally, information generated in the Collaborative process cannot be used by one party against the other if subsequent litigation occurs.

The Participation Agreement is an important component of a Collaborative Divorce. It is important to understand the provisions of the agreement, and know that they are there to define the values and procedure of the process, as well as protect participants if the process does not work to bring a case to completion. The Participation Agreement solidifies the primary pillar of collaborative practice – that the participants agree to remove the threat of litigation as they work to reach an agreement in their divorce.

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FACTA Information for Individuals, IRS (Apr. 2, 2015),

Gifts from Foreign Person, IRS (Feb. 11, 2015)

Form 3520-A, Annual Information Return of Foreign Trust with a U.S. Owner (Under Section 6048(b)), (Feb. 5, 2015),

Form 5471, Information Return of U.S. Persons with Respect to Certain Foreign Corporations, IRS (Feb. 19, 2015),,-Information-Return-of-U.S.-Persons-With-Respect-to-Certain-Foreign-Corporations.

Form 8621, Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund, (Dec. 5, 2014),,-Return-by-a-Shareholder-of-a-Passive-Foreign-Investment-Company-or-Qualified-Electing-Fund.

Form 8865, Return of U.S. Persons with Respect to Certain Foreign Partnerships, (March 16, 2015),,-Return-of-U.S.-Persons-With-Respect-to-Certain-Foreign-Partnerships.

Model Rules of Professional Conduct Rule 1.4

Model Rules of Professional Conduct Rule 1.3






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