Don’t Try This at Home! Part 1

{3:30 minutes to read} When I first met Hank and Wilma, Hank provided me with a 3-page typewritten summary of their “agreement.” As is my practice, I then went through the summary with them point by point.

The first point of their “agreement” was that Wilma would receive 40% of the combined value of their retirement accounts. When I asked how they had arrived at this percentage, Hank stated that he had earned most of the money that went into those accounts.

I then pointed out that, while they could certainly do this, the law viewed their marriage as an economic partnership and did not necessarily give the one that “earned” the money a greater share of it upon a divorce.

When Wilma questioned him about this he became angry with her and accused her of going back on what she had agreed to when they “settled” this at home. After a bit of a discussion, Hank agreed to “give her” 45% of the retirement accounts, and Wilma agreed to this distribution.

The next point in their “summary” was that Wilma was to receive less maintenance than the New York guidelines provided and for a shorter period of time. When I pointed this out to them, Wilma questioned Hank about why she shouldn’t receive the full amount of support for the period of time outlined in the legal guidelines.

When she did this, Hank again became annoyed and reminded her that the two of them had worked this out on their own and that she had agreed to these terms. In the face of this, she decided to accept the terms to which she had previously agreed.

Once all of their issues were “resolved” they asked me to prepare the legal documents that they needed, which I agreed to do. I also suggested that each of them have the draft that I prepared reviewed by his or her own attorney.

When they came in for their review session a couple of weeks later, Wilma informed Hank that when her attorney had reviewed the draft, he had pointed out a number of issues that he felt were not fair to her. These issues included the unequal distribution of the retirement accounts and the amount and duration of spousal support.

As a result, she wanted the agreement changed. Hank again became angry at her and reminded her that she had previously agreed to these terms and that it felt to him that she was going back on her agreement. Wilma replied that when she had agreed to many of those terms, she was not aware of her options or the future consequences to her.

Needless to say, they were unable to conclude an agreement and wound up becoming involved in a costly court battle.

So, what happened? By “agreeing” to things outside of the mediation sessions, each of them created an expectation that they had a settlement. And when one of them, Wilma, found out that she had made a bad deal, she reneged on her “agreement.”

In part 2 of this article, we will discuss how they could have avoided this result.