1.4 Additional Considerations

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

1.4 ADDITIONAL CONSIDERATIONS

1.401 Client Activities.

A. Social.

Clients should be encouraged to maintain a low profile, if possible, after separation and during the negotiating period. The client must realize that adultery or open cohabitation with another may weaken his or her negotiating position. Even if an adulterous situation exists on the opposing side, this does not justify abandoning the restraint on social life that counsel should urge on the client. Clients should be warned against sharing too much of their personal life, including the status of their divorce matter, over social media—Facebook, Twitter, and the like. It may also be prudent to advise the client to change the passwords to those accounts as an additional safeguard.

B. Employment.

A nonworking spouse should be encouraged to seek immediate employment, but the number of young children at home, extended absence from the job market, or lack of education and experience may affect the immediate decision to rejoin the workforce, as well as the eventual structure of the agreement. For example, an agreement may provide rehabilitative support for a spouse to complete his or her education. Section 20-108.2 of the Virginia Code approves childcare expenses to allow the custodial parent to attend educational or vocational classes that are likely to maintain or increase that party's earning potential as part of the child support calculation.

1.402 Emotional Concerns.

A. Sensitivity.

An attorney should be sensitive to the psychological impact of the separation on the client and pay attention to the client's feelings as well as to economic factors.

B. Compromises.

1. In General.

Sometimes terms that are unfavorable from a financial standpoint must be accepted because they either meet a client's current emotional needs or add a sense of stability and balance to a client under emotional stress. The following examples illustrate this point.

2. Lump Sum Settlement.

If the client is wealthy enough to make some type of lump sum settlement and would suffer anxiety and constant bitterness if forced to pay monthly installments, the attorney should consider recommending lump sum support. In this instance, a true lump sum settlement may be advisable. ¹⁶⁰

3. Rehabilitative Support.

If the spouse receiving support payments will be in a position to provide adequate self-support after the children are in school or after completing further education, the payor spouse may agree to pay more support than is needed for a limited period of time.

4. Allocation of Payments.

As to instruments executed or orders entered on or after January 1, 2019, changes made by the Tax Cuts and Jobs Act of 2017 (TCJA) are applicable. Spousal support payments that postdate the change in federal law are nondeductible by the payor and not taxable as income to the payee. For this reason, characterizing payments as spousal support no longer benefits the payor spouse. For example, a payor spouse in the federal tax bracket of 24 percent who pays $20,000 per year in spousal support now also pays almost $5,000 in taxes on that amount, while the payee spouse receives the money without paying taxes on it. While the parties would have been able to assign the children's dependency exemptions to the payor spouse under prior law, the per-child exemption was reduced to $0 by the TCJA. The parties could still assign the exemption to the payor spouse so that he or she could claim the above-the-line child tax credit, which might offset some of the tax burden.

5. "Reasonable Parenting Time" or "Parenting Time as Mutually Agreed upon by the Parties."

Inclusion of the phrase "a parent shall have reasonable parenting time with his or her children at reasonable times and places," in a settlement agreement may cause emotional distress and financial loss to each party when it becomes apparent during negotiations that the parties cannot agree on anything. On the other hand, phrasing such as this puts more control in the hands of the custodial parent, particularly when termed "as the parties mutually agree." Nonetheless, it may be advisable to insert more detailed plans for custody, parenting time, and educational arrangements. This may also have drawbacks, as the parties may then become obsessed with every word of the agreement and seek a strict and literal enforcement of its terms, but if the terms are defined, a court will have the ability to enforce them more easily rather than undefined schedules that are

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