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"Agreements Are Made for Important Reasons"
After a marriage of over 20 years, Mary and Stan had gone through a typical court system divorce. There were a number of contested court hearings along with the usual demands, accusations and suspicions that characterize litigation in the adversarial system. Their frustrations eventually led them to sign a settlement agreement even though neither Stan nor, Mary thought that the arrangement made a great deal of sense. The agreement provided for spousal support to continue indefinitely but, in the event of certain actions by Mary in the future, support could be terminated permanently.
A few years later, Mary did something which, if the agreement were to be interpreted very literally, could have been seen as a basis for an immediate and permanent termination of Stan's obligation to pay support. Stan, having been educated during the divorce in the nature of the adversarial system, seized on this opportunity and wrote Mary a terse letter identifying her transgression and informing her that his days of paying support were over.
Mary wisely consulted counsel and Stan was compelled to do so as well. Each chose to return to the lawyers who had represented them originally. As it happened, both lawyers had become trained in Collaborative Family Law. Mary's lawyer agreed with her that the court might very well decide that Stan's interpretation of their agreement was more literal than the overall contest justified. But, he also cautioned her that the case could be in the court system for a long time, that it would be costly and that the eventual outcome was not certain. He explained that there was an effective alternative to going back to court and Mary was, understandably, interested.
Stan had a similar experience when he (and his new wife) went back to his divorce lawyer. The court would not want to see things Stan's way but, it might feel technically compelled to uphold his position. Regardless of the outcome at trial, the applicable law was in such a state of flux that the case would be a likely candidate for an appeal. Stan eventually acknowledged that his actions might well be seen as somewhat high-handed but, he was adamant that he did not want to continue paying support.
Stan and his new wife listened with interest to his lawyer's description of Collaborative Family Law. His wife was particularly interested in the concepts that the court system could not be used to resolve disagreements and that nothing would be imposed on either party. She reasoned that they could sign the agreement adopting the collaborative approach and then simply refuse to accept any resolution of the matter short of capitulation by Stan's former wife. The lawyer explained to them that the process required that the participants act in good faith and that, in the collaborative process, it would be a part of his duty (and that of the other lawyer) to assure that everyone played by the rules and acted in the highest of good faith.
It was reassuring to Stan and his wife to hear that both lawyers would be committed to assuring that the process would be conducted with fairness and honesty. They agreed. In a matter of three meetings the case was settled. Stan and his wife agreed to pay Mary enough in cash and other relatively liquid assets so that she would be able to buy a new home for herself. This was something that she had longed for ever since the divorce but which would never have been possible without this settlement. In addition, it was a big weight off of her mind to know that she would no longer be dependent on Stan for any part of her support.
From his point of view Stan saw two benefits. First, the cost of the settlement was significantly less than the cost of continuing to make the support payments for possibly the remainder of his working life or even longer. Secondly, the new arrangement was also very meaningful to their two adult daughters and their families. The whole extended family heaved a sigh of relief.
Then, things unexpectedly went awry. Mary was so delighted that she bought a new home before all of the assets had been liquidated. That process took longer than she had imagined and her short term financing suddenly became an imminent foreclosure. She faced the loss of her home, the loss of her down payment and a worse situation than ever. When he described the situation to his lawyer, Stan explained that he and his wife had volunteered to pay off Mary's loan and that they would just wait until she received the money to pay them back.
People who have gone through the court system generally do not have the reaction that Stan and his wife had. The other side is seen as an antagonistic enemy whose misfortunes are not of concern, to say the least. Stan explained that he and his ex had made their deal for very important reasons and that he and his wife were not about to see his grandchildren's grandmother lose her home if they could help it. What would it do to the family if he allowed that to happen?