When I began practicing matrimonial law in 1976, Marital Settlement Agreements were usually couched in straightforward and “boilerplate” language. Since this was only five years after passage of the New Jersey Divorce Reform Act in 1971, many issues had not yet evolved in the world of divorce law. For example, joint legal custody, limited duration alimony and division of such marital assets as non-vested pension plans, stock options and closely held corporations all lay in the future.
Such issues are now part and parcel of a divorce lawyer’s practice. As a result, there is an increased need for Marital Settlement Agreements to reflect such changes and memorialize the level of detail which may be necessary in the circumstances of the case. Given space constraints, I will discuss a category of paramount importance; namely, the children. Perhaps the best place to begin is with the basic concept of custody. In its broadest sense, custody refers to the parent with whom the child will live after a divorce. At the same time, divorcing parents should recognize that from a lawyer’s perspective, custody is actually composed of two parts, legal and residential. The importance of defining legal custody in a Marital Settlement Agreement cannot be overstated. More and more divorcing parents are agreeing to “joint legal custody” which basically means is that they will both be involved in making major decisions in their children’s lives. Oftentimes, however, such general language is insufficient to account for the myriad changes in the parties’ lives and the child’s life. At the very least, “joint legal custody” should define how such major decisions will be made. For example, if the Agreement simply recites that the parent of primary residence must confer with the other parent, such language leaves the other parent in a weaker position if disputes arise. An Agreement requiring the parents to confer with each other creates a better balance, it still does achieve parity for the non-custodial parent. An Agreement which simply states that the parties should “agree”, while the ideal goal, oftentimes does not reflect reality and may create a stalemate. Thus, spelling out parental rights and responsibilities is of paramount importance. Some examples are: 1. That both parents believe it is in the best interests of their child that the parents have shared decision-making responsibility. 2. That each parent is able to make routine, day-to-day decisions, as well as emergency decisions, while the child is with that parent. 3. That the parents confer with each other and share decision-making authority with a view at arriving at major decisions which promote the best interests of their children and that neither parent will unreasonably withhold their consent.
It is just as important for both parents to have access to their child’s medical and school records, as well as independent access to the child’s school, daycare, medical and other service providers. Both parents should be listed as “emergency contacts”.
Some Agreements specifically state that the child shall only be known by a certain name and that if either parent wishes to use a different name for the child, he or she must obtain the consent of the other parent or a court order. Other provisions, which some parents have considered sufficiently important to include in a Marital Settlement Agreement are: 1. Parental agreement regarding obtainment of driver’s license, purchase or use of a car, motorcycle or all terrain vehicle. 2. Parental agreement before the child may use a firearm, engage in hunting or target practice. 3. Parental agreement before any cosmetic surgery, body piercing or tattooing of the child. 4. Parental agreement as to unsupervised access to the internet or “R” rated movies.
Some Marital Settlement Agreements contain provisions regarding vacations and travel by the child with a parent, other family members, unrelated persons or group trips. An Agreement may also provide that if either parent is traveling for more than a certain number of days or nights, he or she must inform the other parent where they can be reached in the event of an emergency involving the children. An Agreements may even contain language regarding the type of discipline which may be used if the parents significantly disagree on the issue of disciplinary techniques.
Finally, given the state of the law in New Jersey, Marital Settlement Agreements may wish to memorialize the issue of access to and contact with a child’s grandparents. From a divorce lawyer’s point of view, the ideal scenario is when divorcing parents are able to remain “above the fray” when it comes to the children. Even in such cases, detailed provisions in a Marital Settlement Agreement are often the best way to ensure stability and predictability in a child’s life long after the inevitable changes which result from his or her parent’s divorce.
In future articles I will discuss alimony, child support and equitable distribution in the context of Marital Settlement Agreements.
John S. Eory is a Shareholder in the Divorce Group of Stark & Stark, 993 Lenox Drive, Lawrenceville, NJ. 609-896-9060. www.stark-stark.com