When Life Changes, Should Your Agreement?

Tamara: Hi everyone. Thank you so much for joining us this afternoon, midday in New York at least, in our second panel or webinar with Adam Berner, our mediator and attorney, Adam Berner in New York and New Jersey. He's been amazing just to have a different voice on the platform and help think about things from a mediation lens. So I'm going to jump in because we're already a minute or two over. For those of you who've never joined our webinars and you are live and you have questions, just pop them into the Q&A. There's a Q&A tab on the bottom. Just put it in there and we'll do our best to get to that as soon as we can. And if we don't, we'll do it in a follow-up and ping you directly or post it on the community. So as some of you know, Adam joined us last month for the first webinar in this vein, and we talked about creating agreements that anticipate real life and build in flexibility and plan Bs. And in that discussion, we actually agreed, and you can access that in the library as well, and we'll group these two together, that it would be really helpful to take a look at what happens after an agreement is signed and life inevitably changes. And this happened to me personally where we were maybe 18 months or two years in and a couple things started bubbling up and I wanted to go back to the agreement and we wound up putting together a one-page addendum to address some of those issues. We didn't initially because we could solve it, but then we felt that we needed to. So it's definitely something that's done. And really the goal is to help all of you understand what may simply require communication, what should be documented, and then when it may be time to get legal or professional guidance. If you don't do that in the documentation, you could simply email or do something on your own. So Adam, welcome. That was a very long intro. Thank you for being here, especially on this sort of pre-fall or Labor Day week. So let's jump in and start with just overall when life changes for folks, what are the most common issues that you see people coming back with after the divorce is finalized, after the divorce is finalized or that come back to you or from what you know anecdotally? I'm curious.

Adam: Sure. I mean, thankfully I don't see it too often. We work hard in putting together a very comprehensive agreement. Sometimes I can be very annoying to clients who just are eager to wrap things up, finish this off, move on with the next chapter of their lives. And I'm there to slow things down and say, "Well, what about this? What about that?" So because we try to be as thorough as possible, it's not common that people are coming back to say, "We forgot about something or this happened." And that being said though, that no agreement can predict every future contingency. The family continues, life continues, kids get older, jobs evolve or devolve. So the challenge here is trying to be as specific as reasonably sensible on one hand. Would it be fair to a client to work through every detail and every contingency, but realizing that things come up to have a process to deal with that in case that it does. The famous expression that you give someone a fish, you feed them for a day, you teach someone how to fish, you feed them for a lifetime. So I kind of think a lot about that in the context of the mediation work that I do, that hopefully through the mediation work or the collaborative work that we do, we're not just helping them get a deal, we're helping them transition to a new relationship, one where they could work through the differences, where we're giving some skills or giving some framework of how to work through these issues in the future so they don't need to come back to me or to another professional ideally so that they're independent to work this out without coming back. That's our hope. That being said, there are issues that do come up. Some of them include maybe there's a half a dozen that come to mind. One is the natural aging of younger children, especially when kids are younger. Right now I have working with a couple of mediation, there's a five-year-old and a three-year-old, and they're just so eager to wrap this up. The fondest thing from their mind is figuring out what to do with college and what. It's going to be more than a decade from now. So that often when there's a press to press forward and not resolve something so far away, even though I encourage them to consider it, dealing with college or when a child becomes emancipated, which typically would impact, it doesn't have to, but it could impact child support. So that is one of the common changes that come up that will come back. Another one which could be more triggering and emotionally challenging to deal with is dealing with new relationships, whether it's remarriage, dating, introducing the kids to a significant other, from that might flow relocation where one wants to move where let's say the other family is dealing with blended family issues and how that could also impact support. So that's another one. A third issue, which unfortunately in our economic times with AI and other challenges, when there's a change of income, usually a loss of a job or other financial circumstances or maybe retirement, how would that impact the deal? A few other that come to mind are just dealing with expenses that besides college that parents of young kids don't have in mind, a gap year for example, or driver's education. Again, the farthest thing from a five-year-old and three-year-old parents. We also on occasion, and hopefully this is not coming from my agreements, but sometimes there are ambiguous provisions because again, a legal document cannot predict every contingency, every scenario. So how to deal with something that's not so clear. And last but not least, sometimes people come when something that has been agreed to hasn't been implemented, most commonly life insurance. He didn't get the life insurance he said he is going to do, or she didn't transfer over the home and the mortgage is still in my name and I want to buy a new home and now the mortgage of our original home is impacting my credit as an example. The last example I'll mention in that category would be retirement accounts. It's an administrative headache to transfer retirement accounts and some are so relieved that the divorce is finalized. They don't bother with those next steps. Just this morning I got a call from someone who's divorced for a while ago, but they never took care of the retirement account, so they want to deal with that now. So those are the things that kind of brainstorming in my mind are situations I come up to deal with after the divorce is finalized.

Tamara: That makes sense, and we'll dig into most of those. Just one question as it sort of relates to what you're saying, and I know in your agreements, and we spent a lot of time in the last session talking about this, that you put in a lot of the what if scenarios and you think ahead and all of that. And so it would make sense that your clients don't come back as much, but do you also have people who come who negotiated with another lawyer or mediator and ask you to mediate on another issue that wasn't covered and then you're dealing with another agreement?

Adam: Yeah, for sure. And those would be the items that would be in the previous response.

Tamara: Right. Makes sense. Then just a general question before we start digging into each, and we can start with parenting, but how does someone know if it's a challenge that's simply part of life and which are the signs that an agreement may need to be revisited? How do you know in different scenarios that you're grappling with if you can solve it just by conversation and a back and forth through email or if you actually have to go and redo the agreement?

Adam: Yeah, I mean generally speaking, if something is informal or certainly temporary such as a minor scheduling adjustment or there's a change of an activity for those kind of temporary things, certainly you wouldn't be expected to change an agreement. But when there's more substantial changes or recurring changes, if there are financially significant changes, especially when we get into issues of support, and if those numbers are changing, that has legal impact because there could be enforcement provisions and you want to document that. And also if there's a permanent change in terms of the children's schedule, the wise thing to do is to document that as well too. We wouldn't want anything that is being implemented or anything done in real time be contradictory to a existing court order. And generally speaking, even an uncontested divorce is ultimately signed by the judge and that becomes a judicial order and we wouldn't want anything in that contradictory to what's actually happening.

Tamara: Makes sense. Okay, let's move to parenting. So you had referenced a couple things in parenting, but let's talk specifically about what happens when a parenting schedule no longer works because this is maybe pre-college, but kids are busier, they're older, they have different preferences, a son may want to stay with the dad more or whatever it is. How do you tackle that? Let's say you agreed on Monday, Monday, Monday 2-2-5 or something through the end of high school and it's not working. What happens then and how do you approach that?

Adam: Yeah, so this is normal and hopefully the parents are secure enough with the relationship with their kids and mature enough to realize that these changes are normal. And we want our kids, sad to say, but I think important to say, we want them to be leaving our homes and be more independent and more interested in spending time with their peers than with us parents. So when we hear when a, let's say alternating weekend dad finds out that more and more his teenage daughter is not looking to spend time with him on weekends, on Sundays, on Saturday nights, but wants to go with friends, that's what dad kind of wants to see, although it might be said, I mean less time. So ideally what we would do is from a mediation perspective, especially they can't do that on their own, is to facilitate a conversation of what parents see, what's going on, what they experience as to the children's needs and help them have that. It could be a very difficult conversation, but just do some perspective taking around that. If they don't see eye to eye, I would encourage them to bring in a child therapist, a child specialist, someone who could bring the children's voice into the room to help the parents make a more informed decision. And then with that, hopefully on their own, come to either an understanding that what is down on paper is okay if it's not fully implemented or to maybe come up with some kind of change based on the shifting of where the kids are at. And then depending how much of a change there is, we'll decide whether that's something that should be done in writing.

Tamara: And if it is done in writing, can that be just a one-pager that's sent via email or an email versus opening back up an agreement?

Adam: Again, I think it depends on the extent of it and whether it impacts anything significance in the judgment of divorce, which typically just is incorporating the terms of the agreement. It could have an impact on child support. So in New York, I'll just be very specific to New York, an agreement for related to family divorce matters that is going to be legally binding has to be done in the same formality of execution that the original agreement is. And typically most agreements say that even if it might not be the law, any agreement will say that, that it needs to have a certain formality to be a real, what we call modification. In New York, that means it needs to be notarized the same formality as a deed is executed. But that being said - So

Tamara: Notarized and then is it resubmitted to the courts and approved or it's just notarized and sent in?

Adam: So it depends. I think it honestly depends what kind of attorney you experience. I think the more court-oriented attorney is going to say everything should be submitted to the court as a consent order or whatever might be called. In my mind, I tend to minimize using the court except where necessary. So generally speaking, I think as long as it's a formally properly executed agreement, an amendment, let's say, I think that would be sufficient, but that wouldn't be in all circumstances, one of those lawyer depend answers.

Tamara: Right, makes sense. And maybe also just the nature of, as you said, the nature of whatever the conflict and resolution is and maybe the relationship with the ex-spouses.

Adam: Yeah. And I'll just say on going back to the kids, I think what's ultimately, except unless we're dealing with a child who's upper high school where they're going to do what they want to do, but generally speaking, I think it's important. We want to get to the point of parents making the decision between themselves and not putting this back on the child. So the child should definitely have a voice. We might need professionals to help bring the children's voice into the room, into the parent's ear, so to speak. But ultimately, it should be the parent's decision wherever possible.

Tamara: And one more question just in the, and I think that makes sense. And obviously getting the kids' perspective as they get older is good too. But one more question before we move to different category. And related to what you just said, again, in situations where certain things weren't anticipated where you didn't talk it through or maybe a position has changed, what if parents disagree on things like what extracurricular activities the child should sign up for or whether or not their kid should drive and have a car or let's take something really big like college, them not going to. This actually happened with one of a member I work with recently and it's not resolved yet. She really doesn't want her son to go to the West Coast and her ex-husband does. What do you do then? Is that a situation where you're back with you or your mediator attorney or is that you're going to a parent advisor or what are your thoughts there? And I know that it would depend, but any thoughts or advice?

Adam: Yeah, I think an important element of an agreement, knowing that you can't predict every issue that will come up in the future, is to have a process built in to deal with these exact kind of questions. So the first step would be go back to the agreement and see what the process is. I know in every agreement I have, there's a dispute resolution provision that spells out what's going to happen. A couple first tries to work it out on their own, and then if that doesn't work, then go to mediation. Sometimes in a more high conflict case, you'd have a parenting coordinator whose role is to make recommendations post-judgment after the divorce happens. Sometimes there are child specialists that have been involved while the couple is going through the divorce that could be helpful to tap into. So depending on the situation, a good agreement should have these kind of steps of a process built in to deal with these differences. So for this other couple you mentioned, I would first go back to the agreement and see what is called for when there's a disagreement.

Tamara: And I know we hit this in the last session. Just quickly, what would be a typical process?

Adam: Well, let's say mediation is a common next step when there's a disagreement. So it would just simply be, let's say, a Zoom call with the parents and myself just working through A, understanding the law based on the agreement. Two, if there's any law outside of the agreement that's relevant. And then three, go doing the perspectives of both sides, finding out what's important. And then through that, like every other mediation, just trying to reach an agreement they both could be okay with.

Tamara: Right. And I would imagine in situations where that wasn't specified in the original agreement, but you hit this point, having a mediation or Zoom session like that, whether it's with the mediator who did the initial agreement or with someone else as a follow-up might make sense there as well.

Adam: Yeah, yeah, for sure.

Tamara: Okay.

Adam: A lot of litigators kind of just go to, their mindset is court. So they'll say in an agreement, if there's a disagreement about this, you go to court. But for most couples, 99% of couples don't need court to make a decision for their divorce. If they have a disagreement, the same I think should apply and all means should be attempted without going to court to work through the differences.

Tamara: This is really good, great advice. Okay, let's shift to the financial changes category. I know, as you said, this is something probably that's happened throughout time, but even more so now just with the advent of new technologies, some of the challenges in the economy. What if there are significant changes in income or employment or someone was supposed to get a bonus and they didn't have their salary or they lose a job? How should couples handle these types of things?

Adam: So again, the first step is look at the agreement, see what the agreement says. I think that an agreement that generally my agreement will contemplate these income changes. If income goes down, income goes up, what will happen? And in some cases are just a general statement. And the law also provides. So even if an agreement doesn't provide it, both for child support, let me speak to New York, both regard to child support and spousal support, there are triggers that are statutorily provided in child support if there's a 15% change of income up or down or if three years that go by, those you could opt out of, but then there's also the substantial change of circumstances. So the law always provides for a trigger if there's such a change, if the agreement doesn't provide in and of itself. On the spousal support, if there's an extreme hardship, generally I think the contemplation if income went down. So besides looking at the agreement and looking at the law, there are a lot of questions that impact the agreement and the law. The change, is the change temporary or is it seemingly permanent? To what extent was it voluntary or involuntary? Someone got fired. Is it legitimate? Do we have a termination letter? And maybe someone got fired, but they're getting paid a full bonus of salary and a severance. So maybe it's not the time yet to assess whether there should be a change. Are there unemployment benefits? To what extent is this person who let's say lost a job is attempting to find alternative work? So all these are factors that the law considers and that a couple would consider in assessing what should be the change. During COVID, this came up a lot, and at this point it's a long time ago, over five years ago. But when I was getting these calls regularly during COVID, I would ask the question, the following question, which maybe is a bit naive, but from a mediation collaborative law perspective, this is my question. If you're still married, if you're still living under the same roof, what would you do? Someone lost their job, what would you do in that circumstance? Now I know now the couple is divorced or they're living in separate residences and separate households, separate expenses and budgets. But from a perspective of a mediation perspective, they're still a family. How can they work together to deal with the crisis that their family is currently going through? So that's kind of always my starting point. Again, it's not a really fair question for a post-divorce situation, but I like to pose it to them because it kind of brings some reasonableness and to be able to hear from, imagine what might be like from the other side in thinking about how to approach this instead of just thinking about it from your own kind of selfish or kids-oriented side.

Tamara: Yeah, and that makes a lot of sense because at that point you would be like, okay, well, we need to still satisfy our kids' needs, and you would shift to having the other salary compensated as much as you can and maybe make cutbacks in other areas and thinking about that pragmatically.

Adam: And to have maybe a temporary arrangement, just like when you're still married, you will see what happens next month. Maybe the next month is, well, that wait and see approach is certainly applicable in a post-judgment divorce case as well. Well, let's do this for the next three months and let's reassess. And if there's any change, come back right away and then we'll reconvene.

Tamara: And I think we hit most of these, but just if we were to flag for people who are actually currently working on their current agreement, and we did deal with a lot of the what if scenarios in the prior session with you and we have in some recent articles, but what are a few financial elements that are commonly overlooked that you could hit in that core agreement that people should be aware of? So I know you had mentioned a gap year or indecision around college or college expenses that you didn't expect. Are there others?

Adam: Around finances or on the parents?

Tamara: Yeah, just on finances that people might overlook.

Adam: Yeah. I mean, how detailed is a couple going to get in terms of listing the expenses to differentiate what's covered by, let's say, the primary residential parent, if there is one, or what's going to be shared in the pro rata share consistent with the big expenses for kids like camp and tuition and childcare? So is it in that category or that category? Let's be clear, because often there's some confusion about that if it's not clearly delineated. So another example would be, this is not actually so on the parenting side, but transporting the kids. Who's bringing back and forth? Is that spelled out? Many agreements don't. And to be honest, typically mine don't because it's not an issue. The parties are just fine and they'll work it out, but where there might be an issue, I definitely want to delineate that. The other thing is that just generally speaking, as I mentioned this before, there's kind of a balance. How detailed do we want to get? A lot of litigators are looking to work at every single detail because they have 20, 30 years of horror stories of conflicts and each horror story, each post-divorce judgment makes its way into their agreement. I had one case where I was working with another litigator on the other side with probably at least 30, 40 years of experience. There was a hundred-page plus document on the financial terms, another hundred plus pages on the parenting terms. That's extraordinary detail that I think most couples certainly in mediation don't have the tolerance to get into all those what ifs and details. So we need to find that right kind of balance. So the only other thing I would say is just often that gets neglected is just that dispute resolution process to really work out. And it could be using an accountant when there's a financial piece or financial neutral also to do some calculations.

Tamara: Yeah, that's good advice. And we do have on My Next Chapter a children's expense worksheet and calculator, which covers a lot of these. And maybe Adam, you can take a look at it and we can make sure it's cohesive or comprehensive. Okay. Last category or bucket that you had hit and is just around new relationships and life transitions. Can you talk just a little bit more about that? So how does remarriage or blended families or a parent's new partner commonly affect existing agreements? I know you had mentioned relocation. Maybe you can talk to that. Are there other points that you typically see in this sort of area?

Adam: Yeah. So when there is a significant other, so questions could include just on a very kind of emotional level, there's a concern where the parent who's not in a relationship, they might feel threatened that the children might call refer to the other significant parent as mommy or daddy or something. So often they might feel threatened, not physically, but relationally. Obviously there's a lot of emotions going on with that new relationship. Another issue I've seen a concern is, let's say typically mom is concerned that dad who has got remarried is going to continue working, not spend time with the kids, and the new wife is going to end up being the primary caretaker for the kids on dad's time. So that's a concern. Other concern that I've seen is let's say the spouse, the ex-spouse is now involved with a person who has a lot of money and is able to provide a much more nicer lifestyle than the couple did before this new relationship. And how does that impact the kids? How should it impact support? Should it impact support? So that's a question that I see coming up as well.

Tamara: And those are all really good. How do you tackle...

Adam: Tamara, you went on mute, I don't hear you.

Tamara: Oh, sorry. Can you hear me now?

Adam: Yeah, I can. Okay, just for a second.

Tamara: Okay. Those are great points. How do you typically address something like the influence or impact of a new partner or a spouse or a shift in potential lifestyle? How would you work to resolve that?

Adam: As a mediator, generally would be my first go-to process is to convene together, create that safe space to enable them to have a difficult conversation. One of the common tricky things that come up in a new relationship, let's say dad is the one who started a new relationship, just as an example, there's kind of an eagerness that dad would have to stop having this double life where there's this other person he's involved with romantically, and then there's the children. And to avoid the conflict, to avoid upsetting the ex, there's no introduction. And then dad is not living this unified life and it gets frustrating. And ultimately, if he's really serious about this other person, he's going to want to make sure to introduce the kids, make sure that it's an appropriate person to be around the kids. Sorry, I had three, speaking of spouses, I had three calls in the past and 30 seconds from my spouse. Hopefully we could push that off for a few minutes. So dad is going to ultimately want to have a more unified life to bring those relationships together, make sure they get together well. But often dad is way too eager to do that. And often it could be more about him than about what's really best for the kids. In the contrast, let's say mom is more focused on the kids maybe more than she should be out of fear of this kind of change happening. So it's very common that it's hard to separate what's going with me emotionally and my sense of readiness for the next stage and how the other person feels about it. So just having that conversation, facilitating the perspective taking, I think is the best way of doing it.

Tamara: That makes sense. And I know also this is one area that you can anticipate some things like we did in our agreement. As an example, we talked about a minimum time for introducing a new partner. We talked about the fact that there would be no relocation until we'd stay in the New York metro area until our kids graduated. So I think hitting some of those points ahead are probably helpful. Are there others that you think in this area, themes that can be addressed ahead of time?

Adam: Yeah. I mean, ahead of time, other than the timing and I would say the notice to the other spouse, and this could be tricky, we're not talking about getting consent from the other spouse. You don't say to your ex-wife of five years ago, "Could I have permission to date or to get remarried?" But as a courtesy and as a way of dealing with helping the kids go through this transition, giving notice to the other spouse I think is probably best practices. Ultimately, if that transition doesn't go well, it's going to strain the whole family. It's going to strain the kids. The kids are going to feel like they might betraying mom if they have a good connection, good relationship with dad's new partner. So we want to bring mindfulness how this is approached with sensitivity to all parties, maybe bringing again someone who has this kind of expertise to give guidance and some objective data. And then just one other issue that comes up with blended families, I don't know if you could really plan out, you can't plan ahead of time, but when often divorced spouses get married to other divorcing families. So now you have two different divorce families who have to integrate their weekends together and the holidays together, and that gets tricky. So I don't know, you can't do that ahead of time, but again, if there's a process in place where these kind of significant changes come up to how to deal with it, that should be in place.

Tamara: Yeah, that's a good example of one. So thank you. This has been amazing. Just one final question, and I think you hit a lot of this, but after looking back on so many agreements that play out over time and someone's just negotiating today, what are certain key things that need to be though about and included from the beginning? I know you said dispute resolution, whether that's a mediator, accountant, potentially bringing in a child therapist. I know you had said changes with the kids in terms of preferences or schedule and what happens then. Are there other things that come to mind that you want to reemphasize that you addressed or others that we didn't hit?

Adam: I don't think there was anything that comes to mind that we haven't hit, but I would just say one advice I would give is that you want to slow down. There's an understandable need to just move this along, and this is a very painful chapter in everyone's life, but use this negotiation itself as a kind of transition, as a tool to transition, especially when there are children, to go from no longer spouses, but to co-parents. It was about 10 years into my practice when I recognized that as a mediator, I'm not just facilitating agreements, I'm facilitating this kind of transitioning of relationships and help them, help couples communicate what their expectations are. If you will, like in a business plan, what's the vision for this family? Not a family in one home, now be family in two homes, but what's the vision of it? What are the expectations? And to facilitate that conversation, so to use this process not just as a deal to be negotiated, but also to work through these kind of more macro questions and expectations.

Tamara: Almost like a playbook for your next chapter.

Adam: There you go. And then the other piece is, especially for a couple that is cooperative and working things out together, I can't help but just give, which I encourage 100%, but at the same time, I would always be wary of jumping into a comprehensive deal without first getting some advice about the long-term deal. People, especially the interest of working things out now, you don't think about beyond the here and now, the painful here and now. So what a professional can help is think this through, not just for the here and now, and just to double check before you make a deal that the here and now deal makes sense, but also think through the long-term consequences that is not going to be readily on the mind of someone going through that.

Tamara: Yep, that's great. These are such good tips. I'm going to try to get a few of them on social. Thank you so much, Adam. You, like always, amazing. We will do a follow-up look at the child expense calendar. Seems to be a big theme here, and I'll make sure that we update that and post it. And I'm sure we'll come up with other topics as the year progresses, but we appreciate you being part of this and I hope you have a great Labor Day and go get back to your wife.

Adam: Okay, thanks. It's been a pleasure as always. Thanks for all the questions and interest. Take care.

Tamara: Of course. Thanks so much, Adam. Bye.