The Dangers of Kicking the Can…

Erica Swensson

Recently, I sat in a conference room to settle a divorce that started 10 years ago. It wasn’t a complicated estate—a few businesses, a couple of commercial buildings, and no minor children. I was the 4th attorney for my client; and my client’s wife was on her 3rd attorney.

The question de jour

“How did we get here?”

My answer—bad accounting, poorly managed expectations, and lack of certainty.

The tendency of litigants and attorneys while moving through the dissolution process is to put off a variety of issues until the time of trial—attorneys’ fees, sanctions, reallocation of expenses… the rationale being that it will all shake out with the final numbers at the end.

On the one hand, this approach can avoid tedious negotiations without the benefit of knowing the final the big picture—a potential fee waster. However, the problem comes when too many items are left unattended—they become too unwieldy to track and difficult to present at trial. More often than not, these items slip through the cracks.

During the pendency of your divorce, there is value in memorializing and formalizing certain agreements. The payment of household expenses, who is responsible, and what happens if they do not comply. It can also help you to understand what you should expect at the time of a final agreement.

Back to my conference room of the long, drawn dissolution. Had the parties had clear, definitive financial agreements with respect to the payment of expenses and accounting of business income, they would not have been left with the sticky (and expensive) task of trying to re-write 10 years of banking history. A few simple agreements from the outset may have made the difference in this case.

Talk to your attorney about your financial expectations and goals from the outset. Don’t be afraid of asking questions and exploring what types of agreements may benefit you and your final outcome.