Child Support Calculation in Virginia – Rebutting the Guideline’s Amount

April 8, 2014

moneyIn Virginia, the Child Support Guideline amounts come from a table which is set forth in the Virginia Code §20-108.2. That Guideline’s Table dictates the “presumptive amount” of child support to be paid in various situations. (See That child support obligation (a single dollar amount that Virginia says your child will need in order to “make it” in the world based on his/her parents’ financial status) is then divided up between the parents, based on their percentage share of income produced and, in certain situations (see last bullet point below), the amount of time that the child spends with each parent. The parent that earns the most money is usually the parent who ends up actually paying child support to the other parent (though not always, depending on the custody share arrangements).

To calculate the presumptive amount of child support, you need the following information (which become the variables for the calculation):

  • gross monthly income for both parents (usually pretty simple except in cases of small business owners and sales professionals);
  • the actual cost of health insurance for the child (not the entire family);
  • the costs of work related childcare (though this is often factored outside of the calculation);
  • and, in cases where the child spends greater than 90 days (24 hour periods) with the non-primary parent (which also includes 50/50 custody cases), the number of days the child spends with each parent per year;
  • and, in cases where there is also a spousal support obligation, that amount, too, is usually put into the calculation.

The best way to calculate child support is with a professional – a divorce mediator or attorney. Unfortunately, most clients leave out key information or miss a variable when they try and figure their own child support amount with online calculators. At least, that has been my experience. It’s never a bad idea to get some preliminary numbers, but a professional should really assist before you get committed to (or get upset by!) a child support amount.

Once the parties agree/the judge determines what the correct variables are to run a Virginia Child Support Calculation (i.e. gross incomes, cost of health insurance, etc.), the amount calculated is presumed to be correct. However, in certain situations, a parent(s) does not agree with that number – and therein lies a big problem.

A battle over whether or not to apply the presumed child support amount in a Virginia divorce – whether in terms of ratcheting that number above guidelines or pushing it below guidelines – is one of the areas where the flexibility and low cost of divorce mediation should be considered. The “legalese” for this modification of the presumed guideline’s child support number is “deviation.”

Anyone considering deviating from the Virginia child support guidelines amount (especially if that parent is seeking a below-guideline’s number) needs to be aware that courts tend to like formulas. That means that if you do not think that the Virginia guideline’s calculation suits your family’s needs best, you will need to prove it. That means evidence. And that means lawyers and big money (if you choose to litigate instead of mediate).

Further, judges who follow the letter of the law must be very particular about the details of the evidence presented. Child-related matters are highly sensitive – and no judge wants to deny a child the basic support that is presumed needed (at least as far as the Virginia General Assembly is concerned) for anything less than a very, very good reason. (It is notable that the receipt of child support is the child’s right and not the custodial parent’s right. So, technically, even the custodial parent does not have the right to waive child support/agree to a below guideline’s amount of child support on his/her own since it is not that parent’s right to waive the child’s right to financial support!)

Courts are required to abide by the following protocol and criteria if and when there is a request by a parent to deviate from the Virginia Child Support Guideline’s Presumed Amount (pursuant to §20-108.1 of the Virginia Code):

The Court must make written findings that:

A. The application of the guidelines would be unjust or inappropriate in a particular case; and

B. There is justification as to why the child support obligation ordered by the court varies from the presumed guideline amount based on relevant evidence pertaining to: The ability of each party to provide child support and the best interests of the child, as follows:

1. Actual monetary support for other family members or former family members;

2. Arrangements regarding custody of the children, including the cost of visitation travel;

3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential;

4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;

5. Debts of either party arising during the marriage for the benefit of the child;

6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

8. Any special needs of a child resulting from any physical, emotional, or medical condition;

9. Independent financial resources of the child or children;

10. Standard of living for the child or children established during the marriage;

11. Earning capacity, obligations, financial resources, and special needs of each parent;

12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;

13. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;

14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

15. Such other factors as are necessary to consider the equities for the parents and children.

At Graine Mediation, we follow similar protocol to the courts when clients are considering a deviation from the Virginia Child Support Guidelines. However, in the Fairfax and Northern Virginia area – where lifestyles tend be quite expensive in terms of the stepped-up extracurricular activities, tutoring, overnight camps, etc. that children are involved in – there is rarely a case where a below-guideline’s child support obligation is agreed to by parents in mediation. (Remember: The guidelines were developed by the Virginia General Assembly for state-wide application – and most Fairfax/Northern Virginia families do not live the lifestyle or raise their children, in terms of dollars spent, like most of the families in other parts of Virginia.) Thus, below-guidelines agreements are rare in my mediation practice. However, above-guidelines deviations are often discussed but, even then, obligating parents to above-guidelines monthly child support amounts are often disregarded in favor of other more practical and creative solutions to award the support necessary while, at the same time, satisfying (as much as possible) each parents’ need for financial stability and control.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

How To Tell Your Children About Divorce

January 28, 2014

Father comforts a sad childThere is no easy way to tell your children about divorce.  At some time, though, most divorcing parents need to have this uncomfortable and heartbreaking conversation.  When preparing to have that talk, experts recommend that you consider the following:

(1) Parents should aim to be together when the children are told about the divorce. 

(2) Children need the truth, but not all of the details.  Answer your children’s questions truthfully, but there is no need to respond with absolute precision or to share the sordid details (if there are any) of your break-up.

(3) Children need to be prepared for how their lives will look – in tangible terms.  Tell them about the schedule.  Tell them about their new room(s). Tell them about their new neighborhood(s).  Talk with them about which one of you will be taking them to their activities, etc.

(4) Do everything you can to make the children feel secure and loved.  More hugs than usual might be needed when you are in the process of separating.  Realize that children don’t always express their feelings, needs, and fears “on schedule”.  Be prepared for spontaneous eruptions of emotion and, at least while the children are in transition, give them your undivided attention when it looks like they are ready to talk.

(5) Assure your children that the divorce is not their fault. Even though this may seem intuitive, lots of children make the mistake of assuming the divorce is their fault.  Sometimes the leap is not drastic, either, if the children have heard and/or seen their parents argue over matters involving them.  As always, fault (of the parents) is irrelevant here in terms of both parents assuring and reassuring their children that the divorce has nothing to do with them or anything they have done or said.

(6) Don’t give your children false hope of a reconciliation.  Many children have a secret (sometimes not so secret) dream that their parents will magically reconcile.  Though giving your children hope that you and you ex will one day get along better (if you are not presently experiencing an amicable separation) is often a good idea, leaving the door open, in terms of hope, that there will be reconciliation can, however, lead to tremendous disappointment and even disillusionment about family, love and security.

(7) Children process information in their own unique way.  Before you sit down to talk with your children about your impending divorce, think about how your particular child hears, absorbs, processes and utilizes information.  Remember: Just because a big expert in the field says that “x” is what your child needs to know, that advice may not work with your particular child.  Be sensitive and try and put yourself in your child’s shoes.

Understand that, no matter the age, children will never forget the moment that they are told that their family, as they know it, has come to an end.  Each child will react differently.  Denial, fear, regression, anger, apathy, and fear of abandonment are normal reactions.  It is these reactions that you will want to be prepared for when you tell your children about the divorce.  Their reactions may be instantaneous or delayed.  Regardless, it is your children’s reactions to the separation and divorce that you will want to be focused on in terms of finding the best ways to alleviate their anxiety and help them settle into their new lives.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator and Elizabeth Downing Revell, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.



Shared Physical Custody: Civility and Communication Are Key to Successful Co-Parenting

January 21, 2014

Effective-Co-Parenting-TipsIt is so easy to continue being angry or in a constant state of irritation with your ex-spouse . . . but, if you have a Shared Physical Custody Arrangement, that anger and irritation will eventually get in the way of successfully co-parenting your children. The anger will seep into your everyday (and I mean everyday!) conversations with your ex-spouse and, as a result, taint your ability to raise well-adjusted and secure children in two distinct homes.    

With Shared Physical Custody, parents will need to communicate on a very regular basis in order to keep each other informed of how their children are doing (day in and day out), with regard to school, academic projects and test schedules, extracurricular activity schedules, tutoring, birthday parties, clubs, church activities and events, illnesses, doctor and dental appointments, ongoing disciplinary action, behavioral issues, emotional issues, etc. Not only that, but children forget stuff – their football helmet, their violin, their homework, their medication, their contact lens solution, their coat, their favorite jeans, etc.  Until they are old and mature enough to handle their own schedules and stuff, both parents will need to be involved, together, in the management of the children’s schedules and material possessions. 

It is hard to imagine (if you are not already parenting in a Shared Physical Custody arrangement) the amount of talking, texts, emails, etc. that are necessary in order to raise children in two separate homes.  The lines of communication must always be open and parents need to make the other parent feel welcome to share information about the children.  In other words, neither parent should ever have to feel that he just doesn’t want to “deal with the ex”.  It should not be a burden.  To limit the stress of co-parenting, both parents need to feel comfortable reaching out to the other parent on all issues related to the children’s well-being.  If you are not there yet, you will almost certainly need to work on this skill.  Sometimes, the majority of the effort only comes from one side.  In the end, however, it doesn’t matter.  What matters is that you find a way to get along.  

On top of the regular and civil communication necessary to co-parent effectively, it will be important, in a Shared Physical Custody Arrangement, to develop new ways of parenting together.  The old habits might have to be reborn in the form of new ways of doing things.  I say this because, as I have seen in my practice, joint decision-making and constant checking-in about children (and the endless and details of their lives!) is not the norm for many couples in intact marriages. Instead, in many families, the majority of child-related matters are handled primarily by only one of the parents and, for a variety of reasons, he or she is not historically accustomed to a high level of involvement from the other parent.  When this style of parenting has been ongoing for many years, it is often very difficult to switch gears.  But, for children to function well while living in two distinct households, both parents really need to be on equal footing when it comes to major – and sometimes not so major – decisions with regard to their children. The details will need to be discussed and follow up will be necessarily.  It’s a lot of communication.

According to Robert Emery, Ph.D., a professor of psychology at the University of Virginia and the author of The Truth about Children and Divorce,

“ . . . joint physical custody is the best and the worst arrangement for children. It’s the best when parents can cooperate enough to make joint physical custody work for children. It’s the worst when joint physical custody leaves children in the middle of a war zone. The best research supports this conclusion. In low or controlled conflict divorces, children fare better in joint than in sole physical custody. In high conflict divorces, children do worse in joint physical custody than in other arrangements. Admittedly, existing research is imperfect and very hard to do. But this “best and worst” conclusion also is commonly held by seasoned practitioners, and it makes good common sense.”


In other words, having both parents in a child’s life, as much as reasonably possible (considering the parents’ ability to provide care and the children’s ability to handle the stress of living in two different homes), is best for kids. . . but only if the parents can get along and make child-focused decisions without the poison of anger and resentment creeping into their conversations regarding the children.

Another reason that Shared Physical Custody Arrangements demand parents that get along with one another is almost never mentioned.  I find it paramount, however, to intuitive and sensitive parenting.  Here is is: Good parents do their best to keep their head and heart on the pulse of their children’s well-being.  In other words, it is important that parents and children “be in rhythm” with each other, as much as possible (until they elbow you out, which is natural!).  However, when your children live in two different homes, this is hard to do.  It is hard to keep your finger on the pulse of your family’s rhythm when that rhythm is in a constant state of interruption. But, plenty of families succeed in doing this and, if you can befriend one those lucky parents, that would be a very good friend indeed!

Some children thrive in Shared Physical Custody Arrangements.  Some do not.  Both parents need to be willing to admit this.  They need to keep a watchful eye on their children’s stress levels and see what type of children they have.  Some kids, even in the best of co-parenting situations, simply never get comfortable with moving between two separate households.  And, of course, some kids seem to do fine even when the parents never get the hang of “civil communication”.  Best Advice: Stay tuned-in to your child (or individual children) and be open to change if necessary.

You should also know that many experts have found that Shared Physical Custody Arrangements tend to be less stable, over the child’s minority, than more traditional post-divorce parenting arrangements. Why is this?  According to Dr. Emery:

“. . . joint physical custody is less stable over time than sole physical custody. Several studies show this. And this isn’t necessarily a problem. Kids’ needs and desires change. So do parents’ needs and desires [change]. People move. New partners get involved. The changes can make a lot of sense, and changes can make things work better. So file this concern under “something for parents to consider” not under “why you don’t want joint physical custody.”

BUT joint physical custody apparently works only for a minority of families. At any one point in time, maybe 10% of children from divorced families are actually living in joint physical custody. (There really isn’t great research here, but even the highest estimates I’ve seen aren’t much bigger.) Why is the number small compared to the amount of talk about joint physical custody? I think it’s for all the reasons I’ve discussed. Joint physical custody is definitely an option to consider – it’s my preferred option for cooperative parents. But it’s only one of many options that can work for divorced parents and for children.”


There is very little good information, statistics or studies out there in terms of what the short and long term impacts of Shared Physical Custody are on the well-being of children of divorce. These children are part of a new trend in raising children and only time will tell us how this new way of raising children actually works out for these kids.  We will have to remember to ask and learn from them, as it is most definitely those children that will be the real experts!

             Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator and Elizabeth Downing Revell, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Single Parent Dilemma: When To Introduce Your Children To Your New Boyfriend/Girlfriend

January 14, 2014

So you’ve decided to start dating again . . .


That idea, in and of itself, can make some people wild with anxiety.  Add to that the decision of when and how to introduce your children to your new love, and you have a lot on your plate to deal with.

Surprisingly, there is almost universal agreement by psychologists, social workers, and other experts who work with divorcing families, that you should not introduce your children to your new boyfriend/girlfriend until you have been in a committed long-term relationship for a minimum of 6 months to 1 year. Of course, all situations are unique, but this 6 months to 1 year standard is a good place to start.

Gary Neuman, psychotherapist, rabbi, and author of Helping Your Kids Cope with Divorce the Sandcastles’ Way, suggests waiting a year from separation from your spouse before introducing one’s children to anyone.  He feels that children need at least that much time to adjust to their new family dynamics.  That “one year” rule is pretty common, in psychology, because it allows a person who has been affected by a trauma to get through all of the major events, holidays, seasons, etc. at least once before attempting to move on to a new way of life – analogous to a period of mourning.

Parents, the experts counsel, should keep their dating life under wraps until, and if, their new relationship becomes serious.  There are a couple reasons for this. First, if your children tend to attach to everyone you date, and your introductions are made prematurely, your children may suffer loss and feel hurt when that person is no longer in the picture. Second, children are often not very friendly to people their parents are dating . . . and why would you want to expose your new friend to that sorry treatment any sooner than necessary? (If you are a parent, you know how kids can be when introduced to new people.  Need I say more?)

It is also a good idea for parents to self-assess why they feel the need to introduce their children to their new boyfriend or girlfriend.  Of what value will that introduction be to the kids?  What is the purpose of that introduction?  Will the children’s lives be enhanced by the inclusion of your new love into their lives? Are you preparing the children for your significant other to be a permanent fixture in your lives? (And, if so, that would probably take a while to decide anyway and, for most people, be well within the 6 month to 1 year framework).

Peter Sheras, clinical psychologist at the University of Virginia, and the author of I Can’t Believe You Went Through My Stuff!: How to Give Your Teens the Privacy They Crave and the Guidance They Need, advises divorced parents to look first toward the quality of the dating relationship before worrying about how or when to introduce children. “The commitment is the most important piece because, when there’s commitment, that becomes obvious to the kids.”

Know, too, that children should not be put in the position of helping you choose/approve a mate.  That type of decision-making is strictly grown-up business.  Something as serious as choosing a partner can only be done by the person who will be having the intimate relationship with the new person. Once again, it is up to the dating parent to choose a boyfriend or girlfriend that is appropriate, kind, kid-friendly and truly loves him or her.  There is a lot to be said for children’s intuition when it comes to people, but assessing the strengths and weaknesses of your new beau is usually not a good place to test your child’s EI (emotional intelligence).

Best Advice: Take things slowly and give everyone the time they need to adjust to their new family dynamics, first.  Then, once the dust has settled, take the matter of introducing your children to your significant other slowly and thoughtfully.  After all, it won’t do your children any harm to be in the dark when it comes to knowing who you spend Saturday nights with when they are with their other parent.  Usually, they could care less and it just  won’t matter to them. . . at least until it looks like your new significant other might be coming into the family in a big way.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator and Elizabeth Downing Revell, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Do Infants Fare Well in Shared Custody Arrangements?

December 3, 2013

sleeping-babyA recent national study from researchers at the University of Virginia found that infants who spent at least one night a week apart from their primary caretaker (almost always the mother in cases of parental separation with infants), with the non-primary caretaker, formed less secure attachments to their primary caretaker, compared to babies who had fewer overnights away from their primary caretaker and/or were cared for by their father (in this case) during the daytime, only.

Attachments are defined as an enduring, deep, emotional connection between an infant and caregiver that develops within the child’s first year of life.  According to the researchers, a child’s attachment to the primary caretaker, formed during that critical first year, will serve as the basis for that child’s ability to form healthy attachments and relationships later in life.

The researchers also clarified what most of us instinctively know:  Babies have an innate biological need to be attached to caregivers – their parents being the obvious “first choice”.  When both parents are always there, this attachment is formed, in great part, by simple consistency.  That is why, when parents split up, the baby’s instinctual drive to attach to a consistent caretaker(s) might be best met by facilitating consistent caretaking during infancy. In other words: No overnights with the non-primary custodian when the child is still an infant.  This is certainly not what many fathers argue for in court and mediation when it comes to sharing the care for an infant child.  Parents in the middle of a divorce or custody battle that involves a baby, however, should be aware of the latest research on the effect of split custody arrangements on children – whether they agree or not.

The researchers of this study advocate parenting plans (custody & visitation) “that evolve, where daytime contact with father’s occurs frequently and regularly, and overnights away from the mother’s are minimized in the early years, then are gradually increased, to perhaps become equal in the preschool years.”

The researchers were clear in that either the mother or father could be the primary caregiver, but the point would be that the child ideally would be in the care each night of a loving and attentive caregiver and that there may be something disruptive about an infant spending nights in different homes.  (Of course, the “something disruptive” is hard to put your finger on . . . but it has to do with an infant’s ability to attach – which must be consistent, and is intertwined with the home in which the infant sleeps at night.)

Journal Reference:  Samantha L. Tornello, Robert Emory, Jenna Rowen, Daniel Potter, Bailey Ocker and Yishan Xu. Overnight Custody Arrangements, Attachment, and Adjustment Among Very Young Children. Journal of Marriage and Family, 1 JUL 2013; Volume 75, Issue 4, August 2013

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

Tips for Writing a Child-Centered Parenting Agreement

October 29, 2013

In cases where parents choose to share the custodial care of their children, it can be tricky to map out the best way to split up your children’s time between both parents. The hackneyed “every other weekend” may have worked in the past, but I rarely see this as a desired outcome for my clients in my mediation practice.   We now know so much more about the positive aspects of children having two involved parents – and both parents usually have work obligations outside of the home – that having both parents involved makes the most sense. When deciding how best to share the custodial care of your children, there are a lot of variables that you should take into account before committing to those parenting arrangements in the form of a court enforceable Settlement Agreement.

1. Should you get your child involved?  You know your child better than anyone, so ask yourself, “Are they mature enough to formulate an opinion on this matter?” Sometimes it is good just to let them know they are being heard, even if you ultimately don’t follow their wishes. In your conversation with them, let them know that they are important, but that the parents are going to have the final say in what’s best for them.

2.  Will the arrangement allow for the child to develop strong bonds with both parents? Children who have strong bonds with both parents seem to do better in life; at least in terms of their ability to form strong relationships with other people and, in particular, in their own marriages and romantic endeavors as they grow up. In order to form these parent-child bonds, it is important that children be given adequate time to bond with both parents. Sometimes, this means planning quality time rather than focusing on the quantity. For instance, a 60+ hour a week professional parent may not actually have the time to be a weekday custodial caretaker.  That parent may only see his or her children off to school, but won’t be home until long after they are in bed. Perhaps in this case, it is better to focus on the quality time, ie. Being a “weekend parent” when there is free time to be attentive.  (Note: There is a lot of discussion in mediation about whether a hard working parent’s mom (“grandma”) is a good substitute when that parent is unable to get home from work.  Though this may be good for everyone, it doesn’t meet the goal of “bonding” with a parent and these types of situations must be considered on a case-by-case basis.)

3. Is the arrangement conducive for the child’s learning and growth? If your child is always stressed out because he or she feels bounced around between locations, their ability to absorb both your and the school’s teachings may be adversely affected. It is true that children need structure, the key reason behind writing a Parenting Arrangement in the first place. But stress can be cumulative and take some time to show in your child; that is why it is necessary to be on the lookout for it from the get-go.  Parents who choose to have their children live in two separate homes must be on the alert to whether the stress caused by living in two different homes is balanced by the benefits of having two involved parents in the child’s life.   Sometimes it is; sometimes it is not.

4. What kind of children do you have? This is the type of question that the courts do not have the resources or time to answer. You and your ex-spouse need to ask yourselves these kinds of questions: Do each of your children need to be on precisely the same schedule?  Would a somewhat divergent schedule based on the children’s age, etc. allow for needed one-on-one time with each parent? Is your child organized? A little scattered?  Can he or she handle the back and forth and keep track of his or her homework? Do your kids have a great need for down-time?  Do they roll with things easily?  Does it take them a while to get settled in to do their homework?  Are they anxious?  Carefree?  With whom do they talk about their problems (if either of you)? Do they need a lot of discipline?  Who is the disciplinarian? Is your child more bonded to one his or her parents than the other? Would spending days away from one or the other of you be devastating to them?

It can seem like a lot of work to figure out a good parenting arrangement agreement, because it is. Be aware that it should be a flexible agreement as you monitor your children and their responses. While kids can seem resilient, what happens to them as children will shape them as adults. If they don’t get the chance to bond with one of their parents, it may manifest itself in romantic relationship problems later in life. Moreover, their stress may keep them from growing in school, which is a possible foreshadowing of how well they may do in the job market.

None of this is said to frighten you, but rather to give you some tools to effectively craft a Settlement Agreement with your soon-to-be ex-spouse that is in the best interest of your children. Every family is different in the details, but if you offer your children love, a sense of safety, and emotional support, the odds are in your favor that your children will do just fine.

Written by Jane Baber, Mediation Assistant, and Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Writing Divorce Settlement Agreements that Stand the Test of Time

October 15, 2013

Writing good Divorce Settlement Agreements—particularly when children are involved—blends two divergent, yet complementary, styles: (1) great specificity, and (2) an openness that allows for the inevitable changes that families go through as their kids grow up.

contractWhen I draft Divorce Settlement Agreements for my clients, I am always thinking about how to write up my clients’ settlement decisions in a manner that will help them stay out of court in the future.  As I have seen over the years, much of the post-divorce litigation is due to poor drafting of the Divorce Settlement Agreement.  That poor drafting is often the result of too much detail about the parties’ current situation and not enough attention being paid to how the Agreement can grow with the family.  Also, many Agreements do not take into account the personalities and habits of the parties, which is essential to making long-lasting Agreements that work.

The ability to write sound Divorce Settlement Agreements that stand the test of time is the result of:

  • Experience – Has your mediator ever been a divorce attorney or at least around the system long enough to know what brings people back to court even after the divorce is over?   Has your mediator been divorced? Divorced with children?
  • Intuition – A good “gut” is essential to working with divorcing couples.  This must be turned on at all times and good mediators do not lump their clients into “categories” or make assumptions about what the clients need.  Open mindedness toward the individuals that you are working with — and rapt attention to the how the couple’s problems are affecting their children – are key to getting down on paper what the couple actually agrees to as well as how the individuals will most likely interpret the language in the Agreement in the future when the going gets tough (as it inevitably does at some point).
  • Financial & Tax Know-How – Good mediators must be able to help the clients project the probable tax consequences of various settlement options as well as help the clients assess what some of their personal financial realities will be post-divorce.  Good questions—based on a mediator’s experience, knowledge and how the clients are feeling about their situation—will help divorcing parties think through the potential financial implications of settlement proposals being made. Also, a good mediator will have CPA and financial planning referrals, articles, and relevant statutes (divorce law and tax law), in addition to disaster and success stories from past cases, to help the parties assess their options.
  • Knowledge of Children’s, Teenagers’ & College Kids’ Financial Needs – The myriad of costs and expenses in raising children is hair- raising and varies from family-to-family, locale-to-locale.  Often times, in a divorce situation, only one of the parents even has an idea what it costs to keep the kids going.  Mediating with parents who have been living in “two separate worlds” requires knowledge of the facts of what things actually cost and what is “normal” and what is “outside of regular expenses” for the community where the family lives.
  • Knowledge of Children’s Emotional Lives During Divorce – It doesn’t take a PhD in Psychology to see that divorce is not an ideal situation for most children.  The research shows that children of divorce often have problems in forming strong, bonded marital relationships when they grow up.  Knowing this, good mediators try and help their clients find ways to counteract that statistic by helping them find ways to be better parents post-divorce than they even were pre-divorce.  Perhaps the disappearance of the distraction of a bad marriage will allow for richer parenting?  Perhaps the parent who wasn’t so hands-on during the marriage will become more so after divorce?  There are always positive opportunities when there is change and good mediators help their clients be aware of those opportunities. Some of this can be written in the Divorce Settlement Agreement, and some of it is just informative.
  • Knowing that Most People Do Not Change… Much: An understanding of the very personality traits and habits that started the couple towards divorce in the first place is important in a divorce mediation and when drafting the Divorce Settlement Agreement.  That doesn’t mean that a mediator necessarily needs to know the sordid details of a couple’s problems as a couple, but it does mean that strong personality traits and habits of thought and action are important.  For example: “Mr. or Mrs. Fussy” will probably remain that way in perpetuity and the Divorce Settlement Agreement will need to be drafted accordingly — either super-fussy so that person is satisfied, or, on the contrary, written with less detail so that Mr. or Mrs. Fussy does not get lost in the trees.  It depends on the individuals.  Also, sometimes people truly change, and that is what brings the couple to your office.  If one party has changed, and the other cannot see that change, it is up to the mediator to try and help them get to a place where those changes can be factored into the settlement, if appropriate, considering how that person “used to be”.

Openness in writing Divorce Settlement Agreements does not mean leaving areas wide open for interpretation.  It means leaving enough room in the language of the Agreement to allow parents to continue to function as their children grow up without being boxed into schedules and habits leave no room for their or children’s growth over time. In Virginia, the Courthouse doors are always open for matters involving children.  However, the Courthouse is not the best place to go every time a divorced family experiences growing pains. It’s better to have your Divorce Settlement Agreement written in a manner that allows for change, while at the same time making it clear what is expected of each parent in terms of their rights and obligations.  Not an easy task, but this is the job of anyone in the business of writing Divorce Settlement Agreements and is what sets a good draftsperson aside from a mediocre one.

When in doubt, ask your mediator or lawyer to see a few sample Divorce Settlement Agreements.   It can’t hurt.  Get a feel for whether that Agreement feels like a “form”, or whether it feels like it is a document personalized to the needs of specific clients – both short and long term.

Set your goals.  Be open-minded. Put your kids first.  Choose a mediator or lawyer who knows how to write a good Agreement for the long term.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


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