Variation & Review
Children’s needs (and expenses) change as they grow up, new spouses come on the scene, jobs change, incomes change. Where the inevitable changes in life make the terms of your separation agreement or court order materially more difficult to follow, it is time to review and perhaps vary those terms. In law, there is a distinct but important difference between a “variation” and a “review”. A variation is where changes have occurred since an agreement or order was made that would have made for a different agreement or order had the changes been anticipated at that earlier time. By agreement or decision of the court or arbitrator the original agreement or order is merely adjusted to take into account the changes since it was made.
By contrast, a review is a reopening of the term of the agreement or order that has changed. Rather than adjustment of the old term based on changes since it was made, a review is a fresh and new look at the issue itself, normally without regard to what was previously agreed to or ordered, to come up with a new decision on moving forward.
Although the end result of a variation and review may be the same, technically the process to get to that result is very different.
Whether a variation or a review, the actual process used to make the decisions can be fast and simple, perhaps without the need for lawyers or it can be almost as intense as the initial agreement/order. For example, child support is normally reviewed every May (after tax returns are completed). The go forward child support can be as simple as looking at the table amount owed under the Federal Child Support Guidelines, or it can be a complex dispute whether or not a change has occurred and if so, was it anticipated in the original agreement or order, and if so, what elements of the change are applicable to an adjustment. Variations in spousal support, including where a paying spouse believes it should end, can be difficult to reach agreement on.
The good news is that for variations and reviews, most of the time the spouses have a much better idea of their respective legal rights and obligations than was the case when they first separated and had to make all of the decisions the separation entailed. Moreover, variations and reviews are usually only about one or two issues, such as child support or spousal support changes. Consequently, it is rare that as detailed an accounting and process is required for a variation than is necessary when spouses first separate.
In the vast majority of variations/reviews, ex-spouses simply come to an agreement between themselves. Where this is not possible, mediation, collaboration and negotiation are far better and less expensive processes than litigation. Especially where the variation/review is only for a short time, such as child support where it tends to be an annual exercise, spending the thousands of dollars on lawyers to litigate will normally far exceed the expense being challenged.
Where spouses cannot make variation/review decisions on their own, especially for relatively straight forward issues such as child support, a “mini-arbitration” may be the best option. This can be a process styled similar to a residential tenancy review where the input can be done strictly through paperwork, with or without lawyer involvement, possibly even online, and the arbitrator makes a decision based on the law and the written submissions. Fast and inexpensive. Call or email us to learn more.
People who use a softer gentler and more respectful process to make the decisions that follow separation seldom burn their bridges and may find that what they thought to be irreconcilable differences really were not deal breakers, and can find themselves reconciled in a much improved relationship with the same person. We are happy to help in any way we can to enable a reconciliation, even after a separation agreement or divorce is obtained.
Of course the vast majority of separations ultimately result in new partnerships. This too is especially true where the separation has been done in a peaceful and respectful process rather than a fight. Not only are spouses better able to find themselves in more functional relationships using these processes, but the new relationships generally create less conflict with the previous spouse. Where there are children from a previous relationship, the peace produced from a functional separation process can be exponentially multiplied as it eases communication between the child and new spouse, new spouse and old spouse, etc., all of which are necessary interactions, one way or another.
Remarriage and/or new spouses may affect past agreements and orders triggering a variation or review. New relationships can also create challenges to arranging an estate between past families and new families. Again, we are happy to assist where we can with these various decision making exercises in a way that makes the most sense for you and your family.