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The Stark Reality of a Separation Agreement

February 14, 2017  | 

{3:54 minutes to read} I met recently with a couple (I’ll call them “Mary” and “John”) to review their Separation Agreement. All went well, with a few minor changes agreed upon during our meeting. Then, towards the end of the Agreement, a provision came up for review at which John expressed surprise.

Mary and I were perplexed. This had not only been discussed fully at a previous session, but over the course of several months, had appeared in writing in:

  • A summary of the meeting;
  • A summary of the terms agreed upon; and
  • 1st, 2nd and 3rd drafts of the Agreement.

This was not a “legalese” provision that could be misunderstood, but a pretty straightforward sentence. While the provision was unusual, the language clearly represented what the couple had agreed upon in the original meeting.

At our review meeting, Mary was not willing to budge, because the issue had been long agreed upon. John became more angry at what he believed to be unreasonable behavior by Mary. Ultimately, he stormed out of the room (complete with door slam) and said he was taking the Agreement to an attorney.

In the aftermath of this, I tried to figure out what had happened to cause John to now be so upset:

  1. Did I fail to explain the effect of this provision?
    I am confident that the couple had been in agreement. I recall that, because it was an unusual provision, I took time to make sure that they both understood its effect.
  2. Was John trying to prevent the agreement from going forward so that they wouldn’t be divorced?
    No. They had both moved on and there would be financial benefits for both once the agreement was signed.
  3. Was John trying to gain an advantage at the last minute?
    I really don’t believe so. He had agreed to far more substantial terms than this.
  4. Had he not read the agreement?
    No, because I received many comments back from him between the drafts. I was confident he had read the agreement.

Ultimately, I received an email a few weeks later informing me that they reached a compromise, and they both signed the Agreement.

In retrospect, I can see how this could happen.

  • Because I stress that until an Agreement is signed, clients are not bound by the terms. There may be a tendency to put off focusing on a certain detail because it’s not applicable at the moment.
  • Needless to say, we discuss very personal, upsetting and complex matters in mediation, and this can affect perception and lead to a lack of recognition.
  • And most importantly, the reality of the situation can occasionally hit someone unexpectedly. No matter how many times that something was discussed and reviewed, the impact of making that commitment is powerful.
While this situation is rare, if it were to happen again, I would not take it as meaning that all is lost. It may just mean that one or both may need a little bit more work and/or time to accept the reality of their new situation.
Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

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