negotiating a divorce in the midst of uncertainty

{3 minutes to read} Many of the couples separating/divorcing during this period of uncertainty due to the COVID-19 pandemic come to mediation looking for help on how to make decisions when everything is in flux.

Here is an email that I received recently:

My husband and I would like to start the divorce process and are unsure of how to negotiate the terms of our agreement when there is so much instability around us. We have three children, two in middle school and one in high school. I am presently unemployed and searching for a job, and although my husband still has his job, the company he works for has taken away all of their employees’ bonuses for the coming year. In his case, his bonus represents a large portion of his earnings. I am also worried about our brokerage/savings and retirement accounts which have shown huge variations over the last few months. How do we plan for the future?

The approach that I have taken with my clients who are facing these challenges is to encourage them to make an agreement with the information that they have as of today — with the understanding that they may need to renegotiate certain terms as the situation evolves. In addition to openly discussing all of the usual issues which are to be included in their separation agreement, it is most important that they have an open conversation about all of their concerns due to the present events.

Here are a few examples of different points of view on how variations in income may be addressed:

•Some clients have chosen to create a temporary agreement and return to mediation within 3-9 months in order to discuss any changes in their employment and financial situations. They hope that with some passing time, they will be better informed and able to make medium- to long-term decisions.

•Others have chosen to integrate into their final legal document the terms under which they would renegotiate their financial decisions, such as child support. Under usual circumstances, most agreements do include what would happen in the case of income variations or loss of a job.

•Others include in their agreement a scale of percentages by which they would adjust how they would share certain expenses as their incomes vary over time. One couple — in which the father always earned substantially more than the mother until his income was temporarily cut — agreed to share the children’s expenses 50/50. As the father’s income increases again they may go to a 60/40 or 75/25 split.

These are only three examples of how things can be addressed under these difficult circumstances. Every situation needs to be looked at closely and every agreement is to be “made to measure.”

If you or someone you know needs help with their separation or divorce agreement, mediation gives them a safe space to have these conversations. I would be happy to help them brainstorm all of their options.

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Jennifer Safian

jennifer safian. divorce and family mediator
divorce and family mediation
upper east side of manhattan (nyc)
new york, ny
(917) 881 5206
jpsafian@gmail.com