Mediation and collaborative divorce allow couples to resolve their differences and reach mutually satisfactory agreements without going to court. There are times when parties are tempted to initiate a court proceeding to protect the accumulation of assets, to shield post-separation income, and/or to fix what would be considered marital or separate property or debt. Often, one spouse consults with an attorney and is told that the best course of action to protect themselves is to file a divorce, which will protect their interests. The other spouse is then “served” with court-initiated action, and two-sided litigation has begun.
One of the great benefits of mediation and collaborative divorce is the avoidance of a court filing at the onset so that the parties can focus on the terms of their separation without the existence of a court proceeding. Is it possible to have both—an ability to protect post-separation assets and income without jumping out of the gate with a litigious event?
The tool that can be used to resolve these concerns is a “stop the clock” agreement (sometimes called a “cut-off agreement”). Stop the clock agreements are voluntary agreements that allow couples to pause the timeline, remove the need for litigation, and agree to the timeline for the division of marital assets. These agreements offer couples the flexibility and time needed to address complex issues and reach mutually acceptable resolutions without the costs and pressure of court-initiated action or impending court dates.
When couples opt for mediation or collaborative divorce, they commit to work together, openly communicate, and negotiate in good faith. Stop the clock agreements build upon this foundation by granting them additional time to explore options and find solutions that best serve their interests. By agreeing to pause the marriage timeline when separation is inevitable, couples gain the freedom to delve deeper into issues, consult experts, and ensure that all aspects of their divorce are thoroughly addressed. This can allow for a more emotionally stable environment and constructive dialogue, fostering cooperation and a higher likelihood of reaching mutually satisfactory outcomes. Stop the clock agreements also enable couples to self-decide the termination date of their marriage—signing the agreement to mediate, their first mediation session, living in different residences, their financial separation, etc. Numerous factors could help a couple decide what date to use, and the option of this agreement allows for that to be a part of their analysis and emotional healing rather than an arbitrary filing date.
While stop the clock agreements have benefits, there are potential drawbacks. In some cases, these agreements can create an imbalance of financial power between the parties. Other times, the emotional strain of the divorce itself leads to an inordinate amount of time spent on whether a stop the clock agreement should be effectuated and then has the potential to deter couples from focusing on the more important issues.
Every couple’s divorce is unique, with specific circumstances and considerations. Stop the clock agreements may or may not be the proper mechanism for both parties to feel secure while maneuvering this transition. At Berner Law and Mediation Group, our attorneys and mediators recognize that sometimes these agreements quell certain concerns of both parties, but not all cases require it. We evaluate the circumstances with the parties and assist them in making their own decision on whether these types of agreements make sense for them.
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