Actually, this “top 5” applies to divorced couples and to couples who were never married but have a child together (that second category is just too long to include in a blog title, isn’t it?) Here are the top 5 mistakes that people make after concluding their divorce or other family law case.
Mistake No. 1 — Not looking at the Judgment when making significant plans and decisions. All cases before the Probate & Family Court conclude with a Judgment. If you are getting divorced, the process will conclude with a Judgment of Divorce Nisi. If you and your child’s other parent were never married, the process concludes with a Judgment of Support-Custody-Parenting Time. (I say “concludes” because the Judgment is final and permanent until and unless it is changed by what is called a Judgment of Modification.)
A Judgment can come from a Judge, who decides what the Judgment will say after a contested hearing (a Trial) in which the parties formally present to the Judge relevant information (evidence) related to the issues the parties are fighting about (custody, support, et cetera); or, a Judgment can (and often does) result from a written Agreement that parties prepare and present (with the help of their lawyers) to the Judge for approval. In the latter case, the Judge’s approval of the Agreement turns that Agreement into a Judgment.
Whether it resulted from a Trial or Agreement, a Judgment is the document that defines the rights and obligations of the parties to each other and to their children. So, it is a very important document; and, the first mistake that people make is to take this very important document and shove it into a drawer or file cabinet to never again see the light of day. I get why this happens — you have been through a lot (emotionally and financially) to get to this point and you’re exhausted. Your divorce (or paternity, support or custody) matter is finally concluded, and what you really want to do is not have to think about it again or look at anything that reminds you of this painful journey.
Here is why that is a mistake — you’ve invested a lot of effort to get to this point where you have clear instructions — in the form of a legally-enforceable Judgment — about what you and your ex are required to do. These instructions should avoid conflict, stress and wasted time as you move to the next chapter of your life, but only if you follow them!
For instance, if you have children, then you have a parenting plan in your Judgment. That parenting plan likely includes language about holidays, and school and summer vacations. In many of my agreements, I include language stating that (1) parents will each have a certain number of weeks of summer vacation each year with the children, (2) the parents will attempt to agree each year on their respective summer vacation weeks, and (3) if they cannot agree, one parent gets the first choice in even-numbered years (2016, 2018, 2020 and so on) and the other parent gets the first choice in odd-numbered years.
If you have first choice on summer vacation weeks in odd-numbered years (that is, your ex has first choice during even-numbered years,) please do not pay a non-refundable deposit to book flights and hotels during the Summer of 2018 before you reach agreement with your ex on the vacation schedule for that summer. I cannot tell you how many times I have spoken to clients who have wasted money and time because they committed themselves to travel plans without first reviewing their Judgment. I understand — you “thought” it was your year to choose first; but, your brain was made for better things than remembering the precise terms of your Judgment and, by the way, that is why we write these things down.
You’ve worked hard to get to this point and deserve the clarity that a well-written Judgment will provide. So, don’t think or guess about what your Judgment says, take the document out of the dusty file folder and read it before you make significant decisions that involve your children or your ex. Make sure you are clear on your rights and obligations before you make plans that will be difficult (or expensive) to change.
Mistake No. 2 — Not collecting reimbursement for uninsureds or other expenses. This is another example of what happens when people don’t read their Judgments; and, it happens so often, that it deserves it’s own place in the top-5-mistakes hierarchy. Most Judgments provide that parents will share equally in the payment of their child’s reasonable uninsured medical and/or dental expenses (and occasionally provide for parents to share children’s extra-curricular expenses.) Uninsured medical and dental expenses are the deductibles and/or co-pays that you have to pay out-of-pocket for much of the medical and dental care that your child receives, such as co-pays for medical appointments, emergency room visits and prescriptions. As a practical matter, one parent is more often taking the child to medical and dental appointments (or retrieving prescriptions) and thus is more often the person paying the expense to the doctor, dentist, et cetera. Depending on your insurance plan and your child’s specific needs, these expenses can range from $100 yearly to thousands of dollars yearly (and — let’s face it — co-pays generally just keep getting higher and higher each year.) These dollars can add up quickly, so do not overlook the fact that your child’s other parent should be sharing these expenses with you.
I generally recommend that clients keep a folder or box to hold receipts showing the payment of uninsured medical or dental expenses. Then, every three months (for instance, on January 1st, April 1st, July 1st and October 1st), draft a letter to the other parent enclosing copies of the receipts. Here is a template that you can use for the letter. Keep copies of the letters and receipts that you send. This will allow you to easily access a paper trail if you need to pursue reimbursement through the Court with a Complaint for Contempt.
Also keep in mind that, for any non-emergency and extraordinary uninsured expense (orthodontia or cosmetic dentistry is a classic example), you should first notify your ex before the expense is incurred. Most Judgments require this notice and communication to happen before the extraordinary expense is incurred; and, if you fail to give your ex notice before incurring the expense, the court may not force your ex to reimburse you. So, please be prepared to show a paper trail of communication before you spend $5,000 on braces or crowns. Here is a template that you can use when you need to communicate with your ex about an extraordinary uninsured expense.
Mistake No. 3. Not revising their estate plan or changing beneficiaries on retirement or insurance policies. A will or other estate planning document prepared before or during your marriage is now likely null and void as a result of the divorce (and, I am guessing you want to change them anyway, right?!) Right after the conclusion of your divorce may be the time to revisit your estate planning. At the very least, however, do not forget to change your life insurance and retirement plan beneficiaries. Most of us name a spouse as the beneficiary on our life insurance policies and retirement plans. After a divorce is concluded and the retirement plans are divided, you may no longer have to maintain your (now former) spouse as a beneficiary. (Alternatively, your Judgment may require you to maintain life insurance naming your former spouse (or child’s other parent) as beneficiary so that this money is available for your children’s care in the event you die before your children are emancipated.) If your Judgment does not require you to maintain your former spouse as the beneficiary on your life insurance or retirement plans, then change the beneficiary designations. This can be accomplished by taking a few minutes to fill out some simple paperwork. If you neglect to make these changes, then your now former spouse remains your beneficiary and, upon your death, your former spouse will receive the retirement asset or insurance proceeds, perhaps instead of your children or subsequent spouse.
Mistake No. 4. Assuming they can change the terms of the Judgment informally (through a conversation, text message or email.) Except for the occasional temporary modification of a weekly parenting schedule — you generally cannot verbally change a Judgment, at least not in a way that is enforceable. For instance, the Court will not enforce a verbal agreement to modify any child support obligation, even if both parties acknowledge such a verbal agreement. Take a moment to read that last sentence again and really take it in. So many people get burned by making mistake no. 4, especially in the child support context.
The situation usually arises like this. Parent A pays child support to Parent B. Parent A — for a perfectly legitimate reason, such as a temporary layoff — asks Parent B to reduce the weekly child support obligation and Parent B says okay (or something that, at the time, sounded to Parent A like “okay.”) Time passes, some other dispute arises between the parties, the issue of child support comes up again and, when it does, Parent A and Parent B no longer see eye-to-eye on exactly what that verbal agreement was (or even that there was an agreement.) Parent A is now at risk of having to defend a Complaint for Contempt and repay what the Court will characterize as past-due support. Avoid this scenario by obtaining the Court’s approval of the changes you want to make to the Judgment. This does not mean an expensive and drawn-out court battle, procedures exist whereby you can easily modify a Judgment by agreement.
Mistake No. 5. Assuming child support terminates when a child turns 18 or when DOR sends a letter saying it will no longer collect support for you or from you. Child support does not automatically terminate upon your child’s 18th birthday. The termination of a child support obligation depends on the circumstances of your case, including whether or not your child attends college. If the Department of Revenue (“DOR”) is collecting support for you or from you, you will likely receive a letter from DOR, as your child is approaching his/her 18th birthday, stating that DOR will no longer collect support. This is not the equivalent of a court order terminating the support obligation — it is simply notification that DOR will no longer be involved in the process (and you must pay or collect the support directly to or from your ex.) DOR collects support only – it does not have the authority to decide if your obligation continues. You should therefore do your homework regarding when and whether the child support obligation is, or should be, terminated.
If you have questions about this or any other divorce or family law issue, feel free to email me. Thanks for reading.