Accepting Help

Some people arrive at mediation with more than an outline of how they wish to see their divorce resolved.  They arrive with certain issues carved in stone.  Unmovable.  Even stubborn.  

For example (hypothetically), a wife who will receive alimony wants her husband to maintain his $1,000,000.00 term life insurance policy - not only to protect the much smaller amount of alimony to which she will be entitled  (for which insurance protection is standard in many divorces), but for the remainder of her life even should she re-marry and the alimony is automatically terminated.    The husband’s life insurance, she says, should continue forever. It should be a part of the property settlement, and not linked to the alimony.  He says he is more than willing to comply.  

If both parties want this provision in their Separation Agreement, or any other mutually agreed upon provision, for that matter, why should a mediator not accept their stated wishes and simply write them into the Agreement?  The answer is multi-faceted, but it begins with a partial description of a mediator’s job: to educate the clients on the ramifications and repercussions of the terms they are considering.

In this hypothetical scenario, neither of them has considered what will happen to the cost of that life insurance policy after the current “term" has expired.  He will then be in his late sixties.  Will he still have his health?  Will he still have a job?  Neither of them can possibily know the answers to these questions.  Yet, they are adamant in their decision to include this provision in their Agreement that will become a Court order on the day of their divorce; a provision that will obligate the husband to maintain a $1,000,000.00 life insurance policy on his life, designating his soon-to-be-ex-wife as the sole beneficiary - no matter what.  Forever.  Non-modifiable.

What neither mentions is that the current premium of, say $1,200.00 per year during the current ten year term, will soon expire.  If he chooses to stay with the same coverage and company, the premiums will escalate to an annual premium figure that could easily become ten or twenty times the premium he now pays.  Maybe more.  And it will likely continue to increase each year thereafter.  How will such a policy be afforded?  

Further, if the husband is unable to pay the new annual premiums, will the wife take him back to court alleging that he is in contempt of a court order?  She could.

What a well-mediated divorce agreement should always consider is the future ramifications and possibilities that could lead to future court action.  No couple who mediates their divorce should settle for a shortsighted recitation of terms that suit them only for today without any thought for tomorrow.  That is a prescription for court activity two or five or ten years down the road.  Avoiding all of that was one reason for selecting mediation over other avenues that are available.  Wasn’t it?

If you are choosing mediation as your vehicle by which to resolve all of the issues that need to be addressed in your final agreement, listen to your attorney-mediator as she or he spells out the consequences of your wish-list; listen to the consequences that you may not have considered.  If your mediator is doing a good job for you, she will not only consider your current circumstances, but your potential future ones, as well.  Just because you walk into mediation thinking that you know what you want to include in your final agreement, does not mean your final agreement will or should include those wishes.  If you insist on potentially dangerous provisions being written into your agreement, you might want to consider saving your money and writing the agreement yourself.  The better choice, however, is to accept the help for which you are paying and listen to the advice you are being given.  If you doubt the wisdom of what you are hearing, take the analysis to your own review lawyer and run it by another professional.  Accept the help that is out there.  If you do, your Separation Agreement will see you through many years, and hopefully, through the rest of your life.

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