Archive for Shawn Weber

Divorce and Recession Fears: What’s Your Divorce Recession Risk Score?

By Shawn Weber, CLS-F and Mark Hill, CFP, CDFA

The impact of a divorce, especially a gray divorce, can be amplified and made more complex in a recession.

The headlines are troubling. Donald Trump’s escalating trade war with China, no signs of a Brexit deal in Europe and unrest in Hong Kong are all making the world’s stock markets nervous. Global gross domestic product is falling, and recession fears are rising as we approach what will be the first economic downturn since the Great Recession of 2009 in the next 18 months.

Interest rates are sending an early warning. Ever since the U.S. two-year/ten-year yield curve inverted on August 14, the news media are a flutter about a possible looming recession. Every recent recession has been accurately preceded by this economic milestone.

NOTE: If you need a primer on the Inverted Yield Curve,  read the Forbes article by Carmine Gallo, “How The Finance Prof Who Discovered The ‘Inverted Yield Curve’ Explains It To Grandma.”

Many knowledgeable financial experts believe we are heading for a recession. There’s some disagreement about timing, but there is consensus our economy behaves cyclically.

We’ve been enjoying an unusually long ten-year economic expansion. Things have been going great, but eventually the law of gravity applies and what goes up comes down. Markets periodically correct. It’s not a question of whether a recession is in our future, it’s a question of when and how deep it will be.

Family law professionals witnessed the devastating  effects of  the Great Recession on clients. While an upcoming recession is unlikely to be as staggeringly awful as in 2009, there are some important lessons for people considering a divorce in the near future.

If you fall into the “Grey Divorce” category (people choosing to end their marriage in their 50s or later), you could be even more vulnerable and need to pay extra attention. If you have created retirement portfolios and diligently invested, assumptions by you and your financial advisors regarding future returns and safe withdrawal rates may suddenly no longer be valid.

What Is Your Divorce Recession Risk?

If you own a business, a recession could have a significant impact on you and your family, especially if a divorce is on the horizon.

For people considering a divorce in uncertain financial times, understanding what happened in the last recession can inform your decision now.

Do you own a business? You have significant reason to be concerned. The 2009 experience showed us how recession can impact divorce decisions in two major areas: falling prices and declining income.

Falling Prices

Things that can go down in value include real estate, retirement accounts, stock accounts and business assets. When your assets decline in value, it impacts your divorce decisions. There simply will not be as much money to divide.

Declining Business Value: Are You Vulnerable? 

Is your business safe? Don’t answer too quickly.

In the last recession, people in the real estate and banking fields were shocked to be laid off. Next time, we see the potential for another round of U.S. business failures. It all comes down to too much debt. Since interest rates have been at historically low levels for a decade, and since banks like to lend in the good times, many businesses have become overleveraged.

The debt amassed in recent years is staggering, but even in today’s strong economy about 20 percent of U.S. companies still cannot make their loan interest payments from cashflow. The only way they can pay their interest is to constantly refinance. In a recession, this situation worsens, putting as many as another 20 percent of companies at risk. What happens if your sales drop in a recession, and you can’t get a loan to tide you over? Your company may not be as solid as you believe.

During the Great Recession, banks were not lending money.  They were even pulling existing loans, creating chaos for corporate finances. Banks are happy to lend money in good times, but in bad times they can get quite stingy with their lending. We could easily end up with nearly half of all American businesses having difficulty borrowing and unable to make loan payments. If they cannot borrow money to keep the doors open, they will go belly-up. By “they,” we could mean YOU.

Businesses of all sizes were devastated by the actions of their bankers in 2009. Companies failed, and workers were fired. In addition, many self-employed people who once ran strong, profitable businesses found they had nothing left.

In the next recession, we predict that the most vulnerable businesses will be those heavily involved in imports and exports, or in high technology. Trade wars create uncertainty which restricts buying and selling activity. With tech businesses, we are doing what America has a habit of doing: turning our heroes into goats.

How Healthy Are Your Retirement Assets?

Many people are not aware how vulnerable their retirement assets are to drops in the stock and bond markets. If the market loses value, your retirement assets lose value.

In an impending divorce, you need to assess whether your retirement plans can survive a recession. We believe you face the greatest risk if your portfolio is heavily exposed to technology companies, and businesses involved in import/export activities. Tip: if you own stock mutual funds, you are exposed.

Watch For Falling Real Estate Prices

Recent strength in the real estate market should not blind people to the reality of dropping prices. Current market strength is a result of the incredible low interest rates available. Although experts predict interest rates will remain low, even modestly higher rates can make real estate unattractive or even unaffordable. Many marriages have a significant amount of their net worth in the family home. When prices fall, there is less to divide, and sometimes not enough to live on.

Are Your Financial Assets in the Recession Crosshairs?

In a recession, nearly anything can happen.

In a recession, anything you own can decline in value. In some cases, property you count on selling and dividing in a divorce settlement won’t sell at any price you can accept. If your assets or employment are vulnerable to market forces, you may want to reconsider the timing of your looming divorce.

Loss of Income and Cash Flow

Are you vulnerable to a loss of cash flow due to recession?

Typically, recessions mess with people’s ability to pay their bills. With recession and divorce, people lose their liquidity in two key ways: loss of financing and loss of income. Additionally, when people already overspend, a loss of income or financing makes life all that much harder.

Preparing For A Loss of Access to Financing

In the last recession, banks became unwilling to make loans, including real estate and business loans.  Consider BEFORE a recession hits whether to borrow money now while lending is available. In 2009, we advised clients to pull money from their line of credit before the bank cancelled the line. It was good advice, because the clients were able to ensure they had cash before it became inaccessible.

What If Your Income Drops?

Consider carefully whether your business or your employer could be in the crosshairs. In the upcoming recession, the most vulnerable businesses will be those involved in the tech industry, manufacturing, farming or retail. Remember, if it costs more money to bring in or send out from the United States, manufacturers who rely on foreign trade will suffer and jobs will be lost.

Can You Handle a Change In Your Current Lifestyle?

If you enjoy spending money on luxury items to maintain a lavish lifestyle, it could come to a screeching halt in a recession – especially if a divorce is involved.

Many of our wealthier clients suffer from “affluenza.” People are feeling flush, consuming more and saving less. A recession will likely reduce income for many of these people. Costs will increase due to ongoing trade wars.

After a divorce, both clients will consume more. Two households cost more to maintain than one. When there is less money to go around and things cost more, families with higher spending patterns are hit much harder.

How will you balance your own needs together with the needs of your children? Will you be able to afford expensive activities for the kids like riding lessons or club sports? Something will have to give. How can you best prepare now?

https://www.surveymonkey.com/r/DivorceRecessionRisk

Take our Divorce Recession Risk Assessment Test

Is there a divorce in your near future?  Worried about the effect of recession on divorce could impact you? Learn your level of risk for suffering a serious financial hit if you divorce during a financial recession. It might change your thinking about your circumstances and how you want to proceed in the best interests of your family.

Guest Blogger Mark Hill, CFP®, CDFA

Mark Hill Divorce Financial ExpertA nationally-recognized speaker on the financial aspects of divorce, Mark Hill is the founder of Pacific Divorce Management.

With nearly 40 years as a financial planner and the last 20 years specializing in divorce, Mark is a wizard at cutting through the complication of the divorce finances. Mark is a luminary in the Collaborative Practice movement and brings his unique blend of financial expertise and dispute resolution skills to even the toughest divorce situations.

Pacific Divorce Management educates and provides guidance so divorcing couples can make informed decisions without feeling insecure about the consequences of those decisions. They gather, organize and evaluate the data and then tailor services to the clients’ needs.

At Weber Dispute Resolution, we love teaming up with Pacific Divorce Management to bring our clients superb financial advice for a secure future.  To learn more about how Mark Hill and Pacific Divorce Management can help you with your divorce case, visit PacDivorce.com or give Mark a call at 858-257-4612.

 

Read also:

Divorce Is Different On Rough Economic Seas – How a Recession Affects Divorce

Does Divorce Mediation Work for Complicated Financial Issues?

 

Seven Tips to Help Clients Prepare for Mediation

Hello I Am Prepared

Prepare for Mediation

So you have the big mediation date planned.  You hope the mediator will be able to work whatever magic she has so you can move the case to settlement and put the case to bed.  You’ve prepared yourself.  You know the law.  You have your arguments ready.  You’ve done your study of the facts.  But you forgot something crucial.  You forgot to prepare the most important person to your case—the person who actually has decision making power—your client!

Clients who prepare for mediation simply do better.  Client preparation significantly increases the chances of reaching a settlement.  Preparation is an often overlooked component of successful dispute resolution.  Importantly, clients are happier when they can settle outside of court.  So, here are seven tips to prepare your client for mediation.

Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.

#1: Make sure the client understands the mediation process.

To prepare your client for mediation, it’s important for them to be clear on what is expected of them in mediation, and what the role of the mediator will be.  Mediation is not court. It is not counseling or therapy.  It’s a negotiation facilitated by a third-party neutral.

The mediator is there to facilitate and to help people bridge their gaps from a neutral perspective. The mediator doesn’t give legal advice and doesn’t get a tie-breaking vote if the clients disagree.

All decisions are up to the parties to mutually agree.  Mediation does not require people to get along. A good mediator will facilitate the conversation and bring balance — even in cases where one party may be a better negotiator than the other.

#2: Educate your client on the relevant law.

It really helps if your client is prepared and armed with information.  This reduces the amount of time the mediator has to spend educating the client.  If they know what their rights are before they come, then they are more able to consider proposals for settlement.

Also, assure them no one will be expected to sign binding agreements without the advice of counsel. This goes a long way toward calming any fears of being “tricked” into an agreement.

#3: Prepare your client to manage emotional responses.

People come to their conflicts with a myriad of emotions.  Most of us, whether we admit are not, make most of our decisions through the lens of our emotions.  This is fine unless the emotions become so intense that we lose our ability to think rationally.  In divorce cases in particular, emotions affect almost all of the clients decisions.  Sometimes parties themselves in the difficult state of fight or flight and are unable to think clearly.  If left unmanaged, a negative emotion can make reaching accord much harder.

Consider mental health professionals to coach the client.

If you are like most attorneys, you have not been trained in psychology.  It’s good practice to know where your limitations are.  Why not involve a mental health professional to act as a divorce coach to prepare clients to prepare themselves emotionally for what might be a challenging meeting.

Help the client come up with strategies to stay calm to help with rational decision making.

Coach your clients on the importance of managing one’s own emotional responses.  It’s good to normalize coping tools such as taking a break or breathing.  If you are going to be there with your client during the mediation, come up with a signal, such as a keyword or a hand gesture, to indicate when a person is loosing it.  That way, when the signal is given, you can take your client outside to calm down.

A good mental health professional can even help the client come up with mindfulness tools to keep them grounded.  You want your client to bring his or her best self so that she or he can negotiate rationally.

#4: Make sure your client realistically understands their best alternative to alternative to a negotiated agreement (BATNA).

It’s common for a client to have unrealistic expectations about how good their case is.  They may believe that their case is a slam dunk and that all they need to do is get in front of a judge so that can explain their case.  Naturally, the judge will see it their way.

But we all know that such is not always the case.  In Roger Fisher and William Ury’s seminal work, Getting to Yes: Negotiating Without Giving In, Fisher and Ury coined the phrase of the “Best Alternative to a Negotiated Agreement”  (BATNA for short). This is basically your client’s best case scenario if they end up in front of a judge.   A strong BATNA can empower decision making.

A client with an overoptimistic BATNA will make choices that put them at risk.  If they have a more realistic BATNA, it’s an important tool in negotiating a mediated agreement.  If a proposal is superior to your BATNA, then should take it.  Having a proposal that is worse than your BATNA will result in a person being less like to accept a proposal.

Be careful, however, that you as the professional also have a realistic BATNA.  I can’t tell you how often I have seen attorneys poorly advise their client because of an unrealistic BATNA.  They then go to court and sometimes get an unpleasant surprise.  So make sure you are thinking things all the way through yourself!

#5: Make sure your client realistically understands their worst alternative to a negotiated agreement (WATNA).

Fisher and Ury also teach us the phrase “Worst Alternative to a Negotiated Agreement” (WATNA for short).  Basically, the WATNA is the worst case scenario if your client ends up in court.  Sometimes a proposal is worth taking simply because it could be so much worse.  It’s a strategy of minimizing risk.

If your client is unrealistic about the worst case scenario and therefore has an uninformed WATNA, that can be very dangerous.  Your client may walk away from a deal that minimizes risk because he or she doesn’t understand how bad it can be.  Just like with the BATNA, make sure you are being realistic too.

I’ve seen a lot of attorneys advise their client not to accept a reasonable proposal only to go to court and do worse.  Client’s don’t love it when that happens- especially if they acted on your advice.  So, make sure you’ve got the BATNA right and be ready to move your BATNA or your WATNA once you get into the negotiation and learn new information.

#6: Get the client away from a fixation on things being “fair.”

Fair is the “F” word. Instead, focus on making a “good business decision.”

In negotiations, “fair” is largely meaningless.  What one person may define as fair may be worlds apart from what the other party defines as fair.  I find it best not to got there.  Fair is the “F” word in my conference room.

Rather, I coach my clients to leave “fair” behind and stretch for a good business decision.  If everybody is giving something up and a little disappointed, that means we are compromising… and that is GOOD.

Help your clients look for an agreement they can live with rather than an agreement that will conform to a mythical understanding of fairness.  Sometimes, the deal won’t ever be perfect.  But if you want your client to stay out of court, it may just have to be good enough.

See also: Why “Fair” is the F-Word in Divorce Negotiations

#7: Teach your client how to make realistic proposals.

He or she isn’t negotiating to get a bargain on a used car. It is a waste of time to offer terms pushing the extremes with the sole intention of pushing the other party to come closer a desired result. It is the road to frustration, mediation breakdowns, and a date in court in front of a judge.

See also: Tips on Making and Receiving Proposals

Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.

Ways to Avoid Mediation Mistakes Too Many Lawyers Make

Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.

Neutral Private Settlement Conference

Back To School Shouldn’t Be A Battle in Divorced Families

Can you believe it's back to school time already? Divorced parents need to make some specific preparations for a successful school year. Photo Wokandpix/Creative Commons License

Can you believe it’s back to school time already? Divorced parents need to make some specific preparations for a successful school year. Photo Wokandpix/Creative Commons License

Can you believe it’s already time for 60 million American kids to go back to school? Didn’t we just start summer?

Mixed feelings are natural at this time of year for everyone. Kids are sad about summer being over so quickly. But they are likely to be excited and happy to see friends and get involved in favorite activities like athletics, music, or robotics.

But if you are a divorced parent navigating co-parenting, back to school is a little more complicated. Who pays for what? What activities will the child get to be involved in? Who does the school call if there is a problem? Who gets to chaperone the field trip?  What school will your child will attend, near Dad’s house or Mom’s house?

The phone starts ringing at Weber Dispute Resolution at this time of year. Parents having trouble solving these issues come to us for help mediating their conflicts. We are glad they do, instead of taking their problems to court. If you need the same help for yourself or your clients, we hope to hear from you.

We offer these tips to help you start working through problems and considering your options.

Get on the same page about routines.

Get on the same page about school routines. Photo: Luci/Creative Commons License

Don’t make school any more complicated than necessary. Kids do better if you and your co-parent agree on routines, and so will you. Meet before school starts without the kids in a neutral location to discuss the routine details first. Some areas for discussion:

  • Emergency contacts and emergency procedures
  • Instructions about academics and schoolwork
  • Disciplinary issues
  • Transportation and pick-up
  • After-school activities

Once you agree, write it all down and share the plan with your children.

Deal with school expenses up front.

Custodial parents usually find themselves paying up front for back-to-school wardrobes and school supplies and then ask for half of the expenses. But even when parents agree to split the cost, sometimes one parent has very different ideas about how much to spend on things like clothes. Set a budget up front you can both live with. Keep copies of the receipts so you have a record of what you’re owed.

Share school supplies information.

You may be the parent in charge of school shopping, but your ex might want to be involved. It’s not uncommon for a divorced dad to take his child out and buy a hot pair of sneakers, backpack, or electronic device. Make sure you have talked in advance about whether Jim or Jane gets a cellphone or iPod. Purchases like this on a whim rarely end up without an argument and upset parents and kids.

Figure out what extra-curricular activities will be added – and paid for.

Are your kids into sports? Drama? Robotics? After school activities take time and money. Be sure you agree which parent is contributing both. Photo: KeithJJ/Creative Commons

Outside of the classroom, many kids want to participate in sports, music, drama, debate, student government, robotics or other science competitions. These activities can build valuable skills and develop passions your kids may follow into careers. But they also put a strain on your schedule and your budget. When time and money aren’t unlimited, you and your co-parent have to decide up front what’s realistic for your child and what’s not. Who is going to provide the transportation, and pay the fees?   

Coordinate everyone’s calendars.

There are going to be lots of events when school starts: sports and music practices, meets, science fairs, concerts, etc. And you think your workday is busy! Coordinate the school calendar with your parenting schedule. You want to make sure your child is able to attend important events. Have calendars in each house, one in your child’s backpack and give one to teachers or coaches to show which parent he will be with.

Negotiate attendance at school events.

Agree in advance to be courteous to one another at school events so you can attend at the same time. You can suck it up for the hour it takes every few months. If this is really, truly not possible, arrange to attend on different nights or at different times.

Meet the new teacher.

Meet your child’s teacher and stay in communication. Photo: Kevin Lopez/Creative Commons License

Divorced or not, it is always good to meet with your child’s new teacher. Let her or him know your child comes from a divorced home or a shared custody home. Children of divorce and separation often act out at school, have emotional moments, or just a bad day. Your child’s teacher should know what’s going on. But keep teachers and school personnel out of any conflicts between you and your former spouse.

Share information about your child’s education and progress.

Don’t play games or create obstacles for the noncustodial parent to get information. Unless you have a protective order, give permission to the children’s teachers, counselors, and medical professionals to share school information with both parents.

Arrange for duplicate notifications.

Information should be shared with both parents. It can be useful to arrange for separate, duplicate notifications about academic progress and school activities so one parent is not responsible for copying and sending information to the other, including anything like schoolwork or forms your child brings home; Do NOT make your child the responsible party.

A written record can help keep legal issues straight and problems from escalating. If you have a contentious relationship with your co-parent, why fan the flames at all? Arrange up front for a neutral third party like a mediator to be the point of mutual contact between you to ensure civility and cooperation.

Remember who school is for. It’s not a battleground to establish who is the better parent.

Remember, school is for your kids – not a battleground for you and your ex. Photo: Ernesto Silva/Creative Commons License

It’s great for you to be involved with your children, but don’t get into a competition with your former spouse. Your child is still dealing with your divorce no matter how long ago it happened while juggling the demands of school. Let school be your kid’s refuge, a place for him or her to have fun, learn, achieve and excel, and forget about difficult family issues.

No matter what, you can’t go wrong making a decision if you stop and ask yourself this: what’s in the best interest of my child? You get an A-plus.

READ MORE: Is Your Child College Bound? Who’s Paying For It?

 

Tips on Making and Receiving Proposals

If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay proposals

If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay

At times during your family law or divorce case, you will have the opportunity to make and receive proposals. Whether large or small, proposals are the backbone of negotiation.

A proposal is defined as a plan or suggestion, especially a formal or written one, put forward for consideration or discussion by others. During your negotiation, you will need to look at many different options and ideas for how to settle issues in your case. Proposals, even imperfect ones, serve an important role in moving the negotiation process forward.

If you are the party making a proposal, keep the following goals in mind:

Make It Specific. The proposal should be specific in its scope. A proposal is specific if it can answer the questions of “who, what, where, when and how.” Including as much detail as possible helps reduce ambiguity.

Less specific: “The children will be with Mother on every Tuesday.” Is less specific.

More specific: “Mother will pick up the children from Father’s house every Tuesday at 3 pm and will return the children to Father’s house on Wednesday at 3 pm.”

Specificity reduces miscommunication and misunderstandings.

Make It Realistic. The proposal should be realistic. Don’t make a proposal you know the other party won’t or can’t accept. You want to make proposals with a chance of being accepted.

Make It Possible. Be sure your proposal is something possible to do in the real world you live in. A proposal physically, intellectually, or emotionally impossible to perform really is a non-starter.

Based on Rational Evaluation. Especially in family law, it’s tempting to make a proposal based purely on emotional needs without rational evaluation. While your emotions are important, it is important your decisions are based on a rational evaluation of the facts.

Steps For Reviewing and Responding To A Proposal

If you are the party receiving a proposal, you should take the following steps:

Ask Questions. Make sure you understand the proposal before reacting. This is your opportunity to ask any clarifying questions before you decide whether or not to accept. If there is specific information you need before you can decide on the proposal, please be specific in letting your mediation team know what information you still need. It’s not helpful to simply accept or reject a proposal you may not understand. Take the time you need to be sure.

Respond. After you are sure you understand the proposal, there are three ways to respond:

  1. “I accept the proposal.” If you agree with the proposal, you accept and everyone moves forward to memorialize your agreement.
  2. “I do not accept your proposal, but here is my counterproposal.” If you do not accept the proposal, it becomes your responsibility to provide a counterproposal. If you would like to brainstorm ideas for a counterproposal, let your mediator help.
  3. “I need to think about it.” If you are not prepared to make a decision yet, that is perfectly understandable. You need not be rushed into a decision. You are encouraged to confer with counsel before agreeing to anything. If you need some time to consider the proposal, please provide your best estimate for your response whether you accept or offer a counterproposal.

Failure is Not An Option

You may notice “rejection” is NOT on the list. A blanket rejection without a counterproposal will simply halt negotiations. If a person rejects a proposal, that person has a responsibility to make a counterproposal.

Remember, there is no such thing as impasse in mediation! When you are stuck, it doesn’t mean you storm away from the table and declare a failure. It just means you and your mediation team haven’t found the right proposal yet.

But we will! Keep at it and be persistent and creative. You’ll get there. You might be surprised where you ultimately land if you keep an open mind to the possibilities.

Download our helpful “Summary for Accepting and Receiving Proposals”.

For further reading on proposals, see:

So, What’s Your Proposal?: Shifting High-Conflict People from Blaming to Problem-Solving in 30 Seconds! by Bill Eddy, JD, LCSW

Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher and William Ury

 

New Case – Watch out if asking question in a deposition about a custody evaluation

New Appellate Case: Anke v. Yeager

There is a new appellate which came down from the Second Appellate District of the California Court of Appeal on February 4, 2019.  The case is Anka v. Yeager and can be found here https://law.justia.com/cases/california/court-of-appeal/2019/b281760.html.

You know it’s going to go badly for the attorney in the case when you read this in the opening paragraphs quoting the oath of admission required to practice law described in California Rules of Court, rule 9.7:

“These cautions are designed to remind counsel that when in the heat of a contentious trial, counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands. Unfortunately, that did not happen here.”  [Emphasis added.]

Yikes!

Sanctions for revealing the contents of a custody evaluation in deposition questions

In Anka v. Yeager, an attorney asked a question during a deposition as part of a child custody dispute about the contents of a custody evaluation.  The displeased trial court ordered $50,000 in sanctions against the attorney and party under Family Code sections 3025.5 and 3111.  The trial court found that the attorney’s asking questions about the custody evaluation in the presence of the court reporter and videographer at the deposition constituted an unjustified, malicious and reckless disclosure of the contents of the custody evaluation.

When the sanctioned attorney appealed.  She argued that the court reporter and videographer were “officers of the court” and were, therefore, exempt under 3025.5.  However, the appellate court held the court reporter and videographer were not employees of the court and were therefore not exempt.  The trial court did not abuse its discretion by imposing the sanctions on the attorney.  The attorney by asking deposition questions referencing the custody evaluation disclosed highly personal information about the child and family.  Moreover, disclosure in the form of questions in the presence of a court reporter was malicious and reckless.  The court affirmed the sanction of $50,000 against the attorney but reversed the sanction against the attorney’s client.

Be careful about asking questions in a deposition about a custody evaluation!

So, what is the lesson here? In a custody cases, do not ask questions about the custody evaluation in a deposition without court clearance.  If you screw this up, you may be paying a lot of money in sanctions and could even face discipline.

Big Change Coming in California Mediation Law in 2019 You Need to Know About

New Form Required by California Evidence Code § 1129

A SMART Agreement for Holiday Co-Parenting

SMART parenting agreements can ensure happy holidays even when you’re divorced.

At Weber Dispute Resolution, we believe in crafting SMART agreements.  SMART stands for Specific, Measurable, Attainable, Relevant and Time-Bound. SMART agreements help with enforcement, and make it clear to both parties what is required for them to stay within the boundaries of their agreement.

Here’s why a SMART agreement makes things so much easier:

  • When an agreement isn’t SPECIFIC, parties become confused over exactly what they agreed on
  • Unless performance can be MEASURED in some way, it is difficult to determine where the boundaries are, and when they’ve been broken.
  • Any agreement must be ATTAINABLE – something you can easily comply with. People can’t be expected to do the impossible – it’s setting them up to fail.
  • Agreements require RELEVANCE to make sense in any particular circumstance.
  • Finally, linking the provisions to TIME-BOUND deadlines lets people know when things should happen.

So, unless your agreement is a SMART agreement, there is a good chance you will be facing problems down the road.

This is especially true when we are talking about holiday co-parenting.  People can become emotional during the holiday season. It’s understandable and predictable. Holidays are all about family.  Not having your children with you and with your extended family during the holidays can be hard to cope with.

Because people are so emotional about the holidays, parenting decisions about holiday traditions and practices can become a significant source of conflict.  When I used to litigate family law cases in courtrooms, unfortunately for my clients, they paid me a good amount of money to sort out holiday schedules and last-minute misunderstandings.

With a SMART holiday co-parenting agreement, you can avoid big emotional blowouts AND writing big checks to lawyers. Here’s how.

SMART – Specific

When crafting holiday orders and agreements, make sure you are very specific about what the schedule is.  Just saying that the

Put your mediated agreement in writing if you intend it to be legally binding. Photo: Antonio Litterio/Wikimedia

SMART agreements are specific. Photo: Antonio Litterio/Wikimedia

kids are with mom on Christmas in even-numbered years and Dad in odd-numbered years is a start.  But it is not very specific.  Get into the weeds about when exactly Christmas starts and ends.  Where will the kids be delivered or picked-up.  I have even seen people get specific about whether a joint present opening time would happen and how it would go.  The more specific your agreement is, the less likely there will be misunderstandings.

Another example is with New Year’s Eve and Day.  When talking about New Year’s Eve and Day and odd years versus even years, which year counts for odd or even?  Is it New Years Eve, which falls in one year, or New Years Day, which falls in the following year?  This kind of lack of specificity can lead to confusion.

A colleague of mine recalled a poll on a local list serve account for family law attorneys.  She learned that when confronted with the question of which day, New Year’s Eve or New Year’s Day, counts for purposes of even and odd, roughly half of the respondents thought it was New Years Eve while the other half thought it was New Years Day.  Get clear, and you can avoid trouble.

SMART agreements are timebound.

 

SMART – Measurable and Time-Bound

When talking about parenting schedules, measurable and time-bound tend to go together. It’s good practice to have a clear start and end time when describing holiday periods. A common provision is  “The child shall spend Father’s Day with the father every year.” This is too vague.

Much better and a more effective provision: “The child shall be with father on Father’s Day every year from 8 a.m. the morning of the holiday until 8 a.m. the day after the holiday.”

SMART – Attainable

It seems like a no brainer an agreement or order should be attainable. But sometimes, people don’t realize a provision is unattainable. In a recent case, the court order described as written the children would be with Mom on Christmas Day at 10:00 a.m. and returned to Dad at 10:00 a.m. the next morning. However, the parties lived more than 3,000 miles apart! These parents could not possibly make this work from any practical standpoint.

In another case, the children were to alternate between mom’s house and dad’s house during the holidays for overnight visits in an even and odd patterned schedule. The problem? One of the parents was incarcerated.

So it’s important to avoid these kinds of attainability problems by making sure the agreement’s boilerplate language is customized to you and written to fit your unique circumstances.

SMART – Relevant

SMART agreements must be relevant to your circumstances.

Holiday co-parenting orders should be relevant to your situation. In one of my cases, Family Court Services made Christmas co-parenting recommendations. The parties only celebrated Jewish holidays. Clearly, something lost in translation was missed.

As practitioners, it’s tempting to fit people neatly into nice little boxes. But it makes little sense to force parents to observe a holiday schedule for holidays the parties don’t even celebrate. In another case, attorneys included a provision for Fourth of July. The parties didn’t celebrate Fourth of July and weren’t concerned about having the kids on Fourth of July.

The SMART Approach to Happy Holidays When You’re Divorced

 Filling a holiday co-parenting agreement with irrelevant provisions does nothing but confuse things, and clutter up your case with unhelpful rules. To say nothing of having an agreement that falls into the “TL; DR” category (that’s Tool Long, Didn’t Read).

Your agreement should be meaningful, with SMART rules that make sense for you and your family alone. Work with someone who will listen to your needs and get you know you, your co-parent, and your kids, and create something that fits. You won’t be fighting against it and arguing about it, which doesn’t help anyone.

Want to clean up your holiday co-parenting schedule BEFORE the holidays get here? Would you like to avoid those frantic last minute calls to a lawyer to fix your holiday parenting schedule? Contact Weber Dispute Resolution now, and you can have truly happy holidays without a care. Isn’t that the holiday gift all families wish for?