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The Four Biggest Challenges in Negotiating a Marital Settlement Agreement

By Joryn Jenkins

Negotiating and drafting a marital settlement agreement can be a difficult task. When discussing and crafting such an agreement, there are four big challenges.

1) Timesharing

For most families, the hardest decision is how the parents will share the children’s time. While many courts are now encouraging 50/50 splits of overnights, many families would not choose such an arrangement, if left to their own devices.

Parents who acted primarily as caregivers, spending 90% of their out-of-school time with the kids, usually won’t want to share time evenly. But if they now have to return to the workforce, even sharing time 50/50 may not be feasible for them. And traditional breadwinners may want an even split, as well, but that, too, may be unrealistic due to their work schedules.

When it comes right down to it, parents often find themselves arguing over a couple of overnights each month, and they don’t understand the amount of money they are spending just on this issue. Sometimes, preparing a visual calendar can drive the point home that it may not be in the family’s interest to dispute timesharing endlessly, despite its importance.

2) Marital Home

Another issue may be who gets to stay in the marital home. Sometimes the parties argue over the home even when neither one of them can really afford it on his own. Splitting one family into two is expensive, and, although the parties could easily afford the home when living together, often times, neither can afford it once they separate. If they can afford to stay in the home, each may fight for it, understanding that they have a better argument for more time with the children if they are the parent still living in the home that the kids grew up in.

If parties cannot agree on who should receive it, it is sometimes better to suggest that the couple sell the home and split the proceeds, and then each purchase a home that fits more easily within their budgets.

3) Child Support

While child support is viewed as the right of the children and not for the parties to negotiate, child support is still a highly contested issue for many families. A party may not be honest about her income, causing the other to waste money trying to prove it up. Some spouses will fight for more overnights just to reduce their child support payments. And even if the parties are able to agree on the amount of child support, if it is lower than the statutory guideline amount, a judge may not agree to the reduction.

If child support agreed upon is not in line with the statutory guidelines, the marital settlement agreement should provide reasons to support the lesser amount. The judge will be more likely then to approve it.

4) Alimony

Alimony is almost always a hot button issue in a divorce. For an alimony order, the needy party must prove, not only that she has a need for it, but also that her spouse has the ability to pay the amount she needs. While courts are veering away from permanent spousal support awards, many spouses will still spend thousands of dollars to prove their entitlement to alimony. And some spouses will not agree to alimony on principle. If so, consider a settlement in which there is an uneven equitable distribution. This can sometimes be easier to swallow than an alimony award for such a person.

In Conclusion

Negotiating a fair settlement agreement can be challenging, especially when the above matters are at issue. Take sufficient time up front with both parties explaining the main concepts involved and the need to work together collaboratively to bring it to a good solution for all.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, 2 of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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