I am an advocate of resolving divorce and custody disputes and helping my clients make reasonable attempts to avoid judicial intervention.  It is less costly, less lengthy and allows litigants to make their own decisions regarding their children, finances, assets and debts.  However, the motivation for entering into a settlement agreement should not be solely for bringing about absolute “certainty”.  Litigation is exhausting and unpleasant.  It does not matter if the divorce or custody litigants are extremely hostile with one another or relatively amicable.  Many of my clients tell me that the feeling of uncertainty is most exhausting. I suppose that it is that feeling of uncertainty that motivates some litigants to insist on provisions resolving issues that may or may not arise in the future.  Some litigants want to resolve how each parent will pay for college of their children even though their children are not yet even in high school at the time of the divorce.  Some insist on provisions “locking-in” support obligations.  Others press for absolute parenting time schedules. However, people who demand settlement provisions that are intended to resolve future events may regret it at the time the future event occurs.

In the example where college contribution amounts are pre-determined before the child is close to college age, what happens if at the time that the child is getting ready to attend college he or she is estranged from a parent?  What if the parents do not agree on the school either for financial reasons or because one parent does not agree that attendance at the chosen college is in the child’s best interest?  Can the pre-determined college contribution amount be modified?  Getting the answer to these questions result in litigation that the parties hoped to avoid.  Depending on the circumstances and other factors that may be weighed in by the Court, an agreement to pay a set amount or a set percentage towards college expenses may be upheld much to the dismay of one parent.

It seems very appealing to some to “lock-in” an alimony amount in a settlement agreement regardless of future changed circumstances.  It may be appealing to the person receiving the alimony because the person has a set amount to rely upon.  It may be appealing to the person paying the alimony because the person is assured that any increase in income will not result in an increase in alimony.  In recent years, the downturn in our economy impacted many people.  Those in an alimony lock-in situation may have felt the financial impact of the downturn but are nonetheless entitled to receive or obligated to pay the locked-in alimony amount.  They will not get more even if they need it or be obligated to pay less even if they can no longer afford the set alimony amount.

Recently, the New Jersey Appellate Division rendered a short unreported decision (non-precedential) in Brucia v. Gamble regarding modification to a school year parenting time schedule which was negotiated and agreed upon when the child was not yet even school age.  It is unclear from the decision if one parent insisted on the provision or if both parents desired to “pre-resolve” the school year parenting time schedule even before their child was school age.  In any case, clearly, the provision left one litigant regretting entering into the “pre-resolution”.  In Brucia v. Gamble, at the time of the divorce, plaintiff and defendant’s son was 2 years old.  They entered into a settlement agreement that included a provision outlining a detailed parenting time schedule inclusive of a schedule for when their son would begin school.   Three years after the divorce, their son began attending school and defendant sought to modify the schedule asserting that the son wished to spend more time with him.  The trial court denied the request and the defendant appealed.  The Appellate Division found that because the parties anticipated the eventuality of the child attending school and entered into a parenting time schedule defendant did not show changed circumstances to warrant a modification of the Order nor did he show that the provision was not in his son’s best interest.

I started this blog stating that I am an advocate of parties resolving their divorce and custody disputes.  However, I am wary about agreed upon provisions that pre-determine possible future disputes.  Life is full of uncertainty and changes.  Be cautious when agreeing to pre-determined resolutions for future events.

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Apple Sulit-Peralejo is a partner of the firm and a resident attorney in the Atlantic City office.  She is an experienced matrimonial/family law attorney having negotiated Prenuptial Agreements, Custody Agreements and Divorce Agreements and having litigated unresolvable cases during the past eighteen years.  Apple may be reached at (609) 572-2230 or asperalejo@foxrothschild.com.

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