What Did We Forget?

Important Divorce Issues May Be Left Out of a Mediated Settlement

by Michael Heath

Using an alternative dispute resolution (ADR) method in lieu of divorce litigation can be very attractive. An expedited settlement, more amicable proceedings, and lower cost forefront the allure. Informal discovery in ADR allows for a less expensive process since collaborating spouses gather all pertinent information instead of relying on legal teams to build their cases. Saving money is a great thing, but couples who drive the discovery process should be careful not to leave any stone unturned.

Focusing on the Obvious   

Although many issues affect a divorce, three or four headline the negotiations:

• Division of assets
• Spousal support
• Child custody
• Child support

Splitting money that is in the bank, deciding what to do with the marital home and where the children reside are marriage-ending issues that are quite apparent. However, there are almost always more underlying matters to be addressed. What are the less evident marital assets? How are future payments protected? Who will be responsible for the costs of higher education?

Divorce Items Sometimes Overlooked

It goes without saying that ending a marriage is an emotional endeavor. Heartbreak, anger, confusion, and disappointment can cause distraction when there is a need to concentrate on all issues involving the marriage. Following are items that are commonly passed over but need to be addressed:

• Frequent flyer miles
• Outstanding credit card debt
• Retirement accounts
• Household items
• Vehicles
• Whole life “cash value” life insurance
• Boats and recreational vehicles
• Time shares
• Season tickets
• Proceeds (or liabilities) from pending litigation
• Intellectual property
• Contents is a safety deposit box
• Valuable artwork or antiques
• Collectables

Some may scoff at the list believing they would not allow any of the items to get missed. That may be true in some instances, but not all. Chaos can creep into the divorce process causing some to be less sharp than they usually are. Snowmobiles stored at a friend’s cabin could be forgotten, especially in the summer. Time can fade the memory of Aunt Bertha’s wedding ring that was inherited twenty years ago. A hotel rewards program entitling either spouse to several free stays could have a value running into thousands of dollars.

Analyze the Entire Marriage to Ensure All Is Included in the Negotiations

It is important for couples to gather all the bank statements, tax returns, appraisals, et cetera to use in negotiating toward a divorce settlement. Spouses still must go over all the aspects of their marriage to ensure nothing is missed. There is nothing wrong with probing down deeper. Leaving an important issue out of mediation can lead to post-divorce legal wranglings. Returning to settle an issue after the marriage has ended can be expensive and create unnecessary hostilities, the very opposite of what mediation is intended to achieve.