General vs. Detailed Parenting Plans

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Parenting plans can be either very detailed or very general.  A detailed parenting plan is just want it sounds like – there will be a lot of detail about exact days, times of parenting exchanges, how summer vacation is scheduled, etc.  A general parenting plan, on the other hand, may just say that one parent will have two overnights per week based on his or her work schedule, and that both parents will work together to figure out holidays on an as-needed basis.  Different states have different requirements about the minimum amount of detail that must be included in a parenting plan.  In Oregon, ORS 107.102 provides that a parenting plan just needs to set out the minimum amount of parenting time that each parent will have.

Pros and cons of each approach.

There are pros and cons to both of these types of parenting plans.  The main “pro” of a general parenting plan is that it builds in a high degree of flexibility, which many parents prefer.  Another benefit is that you don’t have to worry about figuring out all of the different details of your parenting plan; by definition a general parenting plan does not address all of the various details that you would find in a specific plan.  The main “con” of a general parenting plan – and this is significant – is that if you cannot agree on something, what are you going to do?  For example, if your parenting plan says you will “work together” to determine holidays, what will you do if you can’t agree on Labor Day this year?

The main “pro” of a specific parenting plan is that all of the terms are spelled out so you know exactly what the parenting plan is at all times.  This (hopefully) serves to reduce disagreements regarding scheduling because everyone knows what the parenting plan is in every situation.  The main “con” is that a highly detailed approach may be too rigid for some people and actually lead to further disagreements.

Which one is right for you?

There are a few things to consider when deciding whether to use a general or detailed parenting plan.  The first question to answer is what kind of working relationship do you have with the other parent?  Be honest!  Do you work well together?  Do you disagree about whether the sun is shining or not?  If you work well together, a general parenting plan may work well for you.  If you disagree on everything, you probably need a more detailed parenting plan.  If you have a high conflict relationship, then you almost certainly need a detailed parenting plan.

Another thing to consider is how long you have been separated and how things have gone so far.  If you’ve been separated for six months and have established a routine, that should tell you a lot about what type of parenting plan you need.  If you’ve been able to “figure it out”, then a general plan may work well for you.  If you’ve been flexible with each other over time, you probably will continue to be flexible with each other.  If there is constant disagreement about days or times of exchanges, then a specific parenting plan probably makes more sense.

Another thing to consider is that even though co-parenting might be going well right now, it is at least possible that things might be difficult later on.  If that happens, it may be helpful to have a more detailed parenting plan.

You can always be flexible.

You can think of your parenting plan as a “baseline”, i.e., your parenting plan is what you will do unless you reach some different agreement.  Even with the most detailed parenting plan, you can still do something different if both of you agree.  Your parenting plan should address modifications to the parenting plan.  For example, your parenting plan might say that any permanent changes must be agreed to in writing, but one time changes can be agreed to verbally.  Of course, if you cannot agree, then the terms of the parenting plan will determine what is going to happen.

A hybrid approach.

If a general approach is appealing but you are concerned about running into disagreements later on, a hybrid approach may be worth considering.  In a hybrid approach, sometimes called a Plan A/Plan B” approach, you have a general “Plan A” and a more specific “Plan B”.  This approach can apply to your general schedule, your vacation schedule or your holiday schedule (e.g., it might just apply to your vacation schedule and the rest of your parenting plan is a set schedule).

Here is an example of how a hybrid approach might work for holidays:

  • Holidays.  The parents are awarded a “Plan A/Plan B” holiday schedule.
    • General Holiday Schedule. Both parents are desirous of a holiday schedule which provides maximum flexibility to both of them, so that each might have holiday parenting time with the children when they will be best able to take advantage of the time.  It is anticipated that the parents will be able to work together and work out a mutually advantageous schedule on an ad hoc basis.  However, if either party feels that this flexible, non-specific holiday schedule is not working effectively, he or she may unilaterally decide that the Alternate Holiday Schedule detailed below shall go into effect
    • Alternate Holiday Schedule. If the parties fail to reach agreement on a flexible, non-specific holiday plan, or if either party decides such agreement is not working effectively, this alternate general holiday schedule shall go into effect.  Under this alternate schedule the parties shall have holiday parenting time as follows:
      • The terms of this Alternate Holiday Schedule will need to be negotiated and will be inserted here.

 This approach can provide the best of both worlds for co-parents.  It provides a high degree of flexibility but it also takes into account situations where you cannot reach an agreement.  Sometimes people don’t want to take the time to develop a specific Plan B.  However, a specific Plan B is necessary for this type of parenting plan.

So what type of parenting plan should you choose?

The most important thing is to focus on what is best for your children.  A parenting plan that minimizes conflict between co-parents will be better for your kids then one that could contribute to conflict.  With that in mind, if one parent prefers a specific plan and the other prefers a general plan, it probably makes sense to either have a specific or a hybrid type of parenting plan.  If both parents feel like a general parenting plan will work, then it’s probably a safe bet that it will.

Regardless of the parenting plan you choose, be aware that parenting plans are always subject to modification.  If you don’t get it quite right the first time, you can always modify the parenting plan in the future.

Dividing Personal Property During Your Divorce

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A year from now the way you divided personal property in your divorce probably won’t matter to you.   However, that isn’t much comfort right now when you need to separate households and furnish a new residence.  Here are a few of the most common questions about dividing personal property:

How do we value personal property?

For the most part people do not assign values to personal property in the divorce.  To the extent you are going to value personal property, the standard approach is to look at what the same thing would sell for on Craigslist.  That usually doesn’t seem fair to one or both people, but that is the usual approach.  Of course, the two of you can agree to whatever valuation you want to.

What about more valuable items, collections, etc.?

If you have a more valuable item, such as original artwork, antique china, a coin collection, etc., it may make sense to have it appraised by someone specializing in that particular category.  You can usually find someone who can do this for a reasonable flat fee.

What do we do about the cars?

There are two different approaches people usually taken when dealing with vehicles.  One approach is to just say “let’s each keep our own”.  If your vehicles are similar in value (similar is subjective, of course), then this approach is probably the easiest thing to do.  On the other hand, if there is a significant difference in value, then you may want to account for the difference in value.  The standard approach to valuing vehicles is to go to Kelly Blue Book and get a valuation based on “private party, good” value.  For example, if one person’s car is worth $5,000 and the other person’s car is worth $25,000, then under this approach the person with the more valuable car might owe the other person $10,000 so that they both end up with $15,000 in value.

How do we handle jewelry?

Generally speaking, jewelry is considered to be the separate property of the person who it was given to.  One exception to this is if there was an agreement (that you can prove) that the jewelry would be returned to the person who gave it in the event of divorce.  A different approach that people will sometimes take is to sell jewelry and apply it to a joint debt.  For the most part jewelry isn’t worth nearly what someone paid for it.

So…how do we actually divide the property between us?

For the most part people are able to simply agree on the division of most of the household items between them.  If someone brought something into the marriage they will typically keep those items.  If personal property was inherited from someone’s family, they will usually keep that as well.  They will usually keep their own clothes and personal effects.  If there are “sets” of furniture, one person will usually keep one set and someone will keep a different set.  For example, one person might keep the dining set and one person might keep the bedroom set.  If certain items remain in dispute, then they can be sold and divided, or perhaps a trade can be agreed upon (e.g., you keep the Vitamix and the other person keeps the Kitchenaid).  If disagreements still remain, those disagreements can be addressed in mediation.

The other person received way more value in terms of the personal property and it doesn’t seem fair to me.  What now?

Sometimes when one person is keeping most of the personal property (usually the person staying in the home), people will agree that the divorce is a family issue and therefore family resources will be used to help furnish a new residence.  A different approach is to agree that the person not receiving the personal property will receive some “offset” somewhere else.  For example, if someone is taking most of the personal property, maybe they take slightly more debt.

What do we do about family photos, the kids’ paintings, etc.?

Sentimental family items are usually evenly divided between you.  Often what people will do with photos is to have each person take half of the original photos and then make a copy of the photos for the other person.  Now that most photos are digital this is less of an issue.

Finalizing Judgments in 2014

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Multnomah County Circuit Court has informed us that the deadline for filing judgments and having them signed before the end of the year is December 12th. If your judgment is submitted by this date the court guarantees it will be signed as long as there are no substantive or procedural problems with the judgment. If you submit it after December 12th it could still possibly be signed but it is not guaranteed.

Clackamas and Washington counties do not provide us with a specific date. Generally speaking, though, they tend to be faster at signing judgments than Multnomah County.

Depending on your county and the judge you go to, it may be possible that a judge will sign a judgment at ex parte…and then again they may tell you to submit it to the clerk’s office to be processed in the normal course of business. With that said, if it is important to you that your judgment is signed this year you should submit it as soon as you can so that you leave yourself some additional time in case the judgment would be initially rejected for any reason.

If you are hoping to be divorced by the end of the year and haven’t started the divorce process, you still have a little bit of time (but not much!). The Kitchen Table Mediation approach probably makes the most sense if you are hoping to get things finalized by year-end.

Mediating Prenuptial Agreements

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Let’s face it – prenuptial agreements are not the most romantic things in the world.  The reality is that you probably don’t want to be thinking about a possible divorce while planning the happiest day of your life.  However, this does not need to be a depressing topic.

The traditional approach to prenuptial agreements focuses on what will happen if something goes wrong.  It puts spouses-to-be in an awkward situation of planning their divorce before they’re even married.  At worst, it forces people into a contentious discussion while they are supposed to be planning their future.  Rather than focusing on what happens if you divorce, mediating your prenuptial agreement can be an opportunity to explore what is important to both of you as you start your new lives together.

A traditional prenup review goes something like: A client will bring in a very one-sided document which completely favors the partner asking for the prenup.  When asked how they feel about it, most of the time the client responds, “I don’t like it, but I don’t want to get into a big argument right before the wedding.”  When the client is asked what their spouse-to-be says about the prenup, the answer is usually the same: “He (or she) said that the lawyer said he had to do this.  The lawyer just gave him this form and said this is a standard prenup and that I needed to sign it.”  This conversation usually happens a week or two before the wedding.

The above exchange is problematic for a number of reasons.  First, a prenuptial agreement needs to be entered into freely, voluntarily and without any type of undue stress or influence.  In other words, this conversation should not take place a week or two before the wedding.  This is an important discussion that needs to be thought through and considered well in advance of the wedding.  Second, there should be some discussion about the terms of the prenup, not just “here, sign this.”  This should be a dignified discussion, not a take-it-or-leave-it proposition.  Third, your life is not based on some form – your prenup shouldn’t just be some form.  It should be a thoughtful document which reflects the goals and interests of the spouses.  Fourth, and most significant, the traditional approach to a prenuptial agreement is inherently adversarial.  Weddings are stressful enough – the last thing you want is to create an adversarial situation with your bride-to-be.

Is this the experience you want to have when entering into a prenuptial agreement?  Probably not.  Here’s how a mediated prenuptial agreement might look:

Both clients will come in to discuss the prenuptial agreement.  Instead of secretive discussions with separate lawyers, both clients get to share their hopes, thoughts, concerns and feelings about their new lives together and about the prenuptial agreement.  Importantly, this is an opportunity to talk about your shared and separate interests as you start your lives together.  This is especially true in second marriages.  If you have been married previously, you probably know what works – and doesn’t work – for you.  Take this opportunity to have an honest conversation with your new partner.  Have you built a business or other significant assets prior to the marriage?  Take this opportunity to talk about how the two of you will build your financial lives together going forward while potentially keeping premarital property separate.  Is there a significant earnings disparity between you?  Take this opportunity to discuss what that means to each of you in the context of your new lives together.

Marriage is a big decision and a prenuptial agreement is a big decision.  Although there may be a temptation to just “get through it”, you will likely have a more satisfying agreement if you have more than one meeting.  The first mediation appointment is an opportunity to share interests and consider various topics.  The second (or possibly third) meeting is to make decisions about the terms of the agreement.  In between meetings there will be items of homework.  For example, clients may be asked to consider whether a “sunset clause” is appropriate (a sunset clause is a clause that terminates the prenuptial agreement or certain portions of it after some period of time, e.g., ten years).

In between mediation appointments – and definitely before you sign any agreement – you should meet with a mediation-friendly attorney to review and discuss the agreement.  An attorney who is supportive of mediation can help you consider the agreement in light of your interests.  Rather than trying to convince you to get as much as possible, the lawyer should help you figure out whether the agreement meets your interests and those of your partner.  That feedback can then be shared with your spouse-to-be in the structured environment of the mediation process.

Ideally your prenuptial agreement will be signed at least two months in advance of your wedding.  This timeframe insures that everyone has sufficient opportunity to review and consider the agreement.  If there is a snag, it leaves you plenty of time to work through it.  More importantly, getting this accomplished and out of the way will allow you to focus on what’s important – your new lives together!