Settlement Agreements in Pennsylvania
Many people considering divorce seem to think that a formal agreement settling everything between divorcing spouses is a necessity required by law or just as a matter of course in every divorce. While that may be true in states other than Pennsylvania, it is not necessarily the case in a Pennsylvania divorce. No doubt a number of you may have filed what you thought was a very simple, reasonably cordial divorce in the past and did so through a classic, local, full-service lawyer or law firm who, simply as a matter of course, prepared a multi-page agreement for you and your then spouse to sign, even though you had already divided everything and, after the divorce became final, there was nothing more you expected from your spouse and nothing more your spouse expected from you. Why was that document with page after page of boilerplate legalese, none of which you understood and which did not give you or entitle you to anything you did not already have, made a necessary part of your divorce?
The plain truth is that it was likely a complete waste of time, paper and additional legal fees. Under Pennsylvania law, if you have in your possession or titled to you alone everything that you and your spouse agreed that you should have and your spouse did as well, that agreement served absolutely no legal purpose. Oh, I suppose that it could be argued that the agreement could prevent one of you from claiming later that one of you was supposed to receive something that had been agreed upon but which was not received, but in the literally tens of thousands of divorces which I have handled, I have not had a single, solitary client ever mention that to me.
The fact is that not one in one hundred of my clients actually need an agreement because they come to me with either nothing to settle or everything having long been settled before I was even contacted about filing the divorce.
Let’s discuss the topics that might need resolved when a couple decides to end their marriage. First and foremost are the natural or adopted children of their marriage (not the stepchildren, however). Do you know that basic psychology teaches us, in an academic setting like college, about our “natural drives”? That was a long time ago for me, but I do remember that self-preservation – staying alive – was number one. Number one for males, that is. That was number two for female humans. What was number one for women? Motherhood. The best example of that is the story of mom and dad visiting neighbors on the lawn across the street from their home when they hear a loud noise, turn around and see that their house, with their kids inside, is in flames! What do each of these parents do? The mother, without a millisecond of hesitation and with absolutely no concern for her own safety, bolts across the street and runs into the inferno to rescue her kids. She cannot help it. It was instinctive and she reacted instantly without thinking of anything but the children. Now this is not to say that Dad is a bad person or unconcerned with his kids’ safety. He likely loves them dearly, as much and even possibly more than Mom does, but the instinct to charge into the burning home is not in him. Instead, he thinks first and formulates a plan of how best to save his kids (and his wife, who is likely to be a few steps ahead of him). He may decide that there is no time to make a plan and must act now and sacrifice his own safety. He may even be more successful than the mother in extricating the children from the house, but, unlike Mom, he had to think before acting, however briefly. His drive of self-preservation kept him from acting instantly and instinctively as did Mom. That’s the difference. And in terms of saving the kids, it may have made no difference at all. For example, the mother’s haphazard rush into the building could have seriously injured her and kept her from reaching the kids while the father’s pause to consider the “best” way do act may have been more effective. But that is not the point. The point is that Mother Nature built men and women differently in certain regards and the motherhood example is fairly important in considering the children in a divorce.
No, I am not saying that Mom should always get the kids all the time. Plenty of fathers are better parents in my experience. What Pennsylvania law wants is for the children to have both parents in their lives as much as possible. And “as much as possible” is where the difficulties typically begin to arise. Virtually all adults these days have busy schedules and most of us have jobs requiring a lot of our time. Accordingly, the respective schedules of the parties have to play a part in the physical custody schedule. Also to be considered is with whom the kids would be when a parent has custody per the schedule, but something important comes up and the children must have alternate care. When that happens, it hoped that a close relative will be available rather than a stranger (like a neighborhood babysitter).
Working out the physical custody schedule really is not rocket science, just common sense keeping what is best for the kids foremost in mind. And children are not bargaining chips. Wanting to have them with you to love and care for is one thing. Wanting them with you just to punish or even annoy the other parent, well, if the Judge determines that to be the case, look out!
I always try to get parents to micro-manage the schedule details. Why? Because it is usually the details that cause friction and even real problems. Times for pickup and return of the kids should be set along with who will do what and how in that seemingly simple regard. Here’s a typical problem that arises when the schedule is too general: Dad is to pick up the kids at Mom’s every other Friday at 6PM, but they put nothing in the agreement as to whether Mom should have already fed the kids or that should be Dad’s job. Having a “tight” schedule can be helpful in other ways. In the above example, assume the agreement said that Dad picks up at 6 and is to feed them, but Dad’s boss, at 4:30, tells him he must stay at work until 7PM. Mom has the choice of saying Dad can be late or telling Dad that Mom has important plans and Dad will have to inform the boss he cannot stay. In other words, with appropriate notice to one another, you can modify – or stick to – the schedule. And Mom, remember that Dad needs that job to support those kids, but if Dad says he cannot make it because someone just gave him tickets to tonight’s game, well, maybe he will have to refuse them.
Child support can also be a subject in the agreement. The internet can be useful here to find Pennsylvania’s support guidelines, which are part of our law. Once you have found them, please do not go immediately to the charts. Read the instructions first. They may be a little tedious and long, but if you do not read them, it is just about guaranteed that you will end up in the wrong place in the charts. That could result in either an underpayment or overpayment of support, and one of you will be very unhappy.
As I alluded to earlier, if you have been separated long enough for you two to have settled into a reasonable schedule and support payment (and if the party paying feels it is too much and the other that it is not enough, it is probably just right), consider not putting it in writing. Too many couples who were somewhat satisfied with their arrangements found themselves arguing and even in court when they tried to get it written down.
Do you need an agreement to divide up the marital assets? If you have been separated for a while and neither of you wants anything from the other, the agreement could be a waste of time and money; however, if either or both of you are to receive something from the other after the divorce is final – such as money from an account or retirement plan – the agreement becomes essential because you would otherwise have no legal way to compel that payment. There are types of financial accounts that can be shared in the future long after the divorce requiring a third party, like a former employer, to pay funds as they become available, some to one party and some to the other from the same account. To protect the people who have to make those payments from lawsuits for making payments a party thinks are incorrect or unfair even though agreed upon in writing, the law created special court orders directing who to pay what to whom and when. They are sometimes called QDROs or Qualified Domestic Relations Order and may be needed instead of or in addition to the settlement agreement. Your lawyer can assist you.
Who will assume responsibility for any debts that remain to be paid can also be specified in the agreement, but if they were debts incurred by the marriage and for the marriage, remember that if the party agreeing to pay such a debt fails to do so, you may still both be sued to collect the debt (even if only one spouse’s name is on the account).
Agreements can say who gets what vehicle and who will be responsible for payment. It is not always financially possible to pay off a loan to put a vehicle’s title into the agreed owner’s sole name. Who will get tax exemptions can be written in. If the family home is decided not to be sold under certain circumstances, that can be very important to have in a written, binding agreement. Parties can decide who will pay or help pay for medical insurance for a party or children going forward and codify those terms in an agreement.
In the end, just about anything – anything legal, that is – can be put in a settlement agreement and you need one to enforce promises which are made to happen after the divorce; however, it is always better to do things than to agree to do them. The vast majority of these agreements go into a drawer in the home and yellow with time, but they can provide assurance that will ease your mind about the other party’s future promises to you.