When couples divorce, often the most difficult part is how the children are affected by the process and the behavior of the divorcing parents. No one wants someone else raising their children. However, that can be a very harsh reality to face for divorced people with minor children.
Previously in this space, we looked at employment contracts for executives and high visibility employees or representatives, and how a company can manage the risk of illegal or otherwise improper behavior of those key persons. With some foresight, and smart contractual drafting, the company can protect itself from bad behavior through morality clauses.
Surprisingly, this very same issue - guarding against the poor judgment of others - appears in many, many divorce cases, particularly when there are minor children and custody issues involved. These issues can have a profound impact on many people, regardless of social status, wealth, religion or any other demographic category.
Even the most amicable divorce matter can be psychologically and emotionally challenging at times. More often than not, those challenges can become extreme when mixed with the financial pressures that divorcing couples also face. Add to that the difficulty of navigating custody issues, and the parties’ differing perceptions of what is in the child’s best interest, and you have a powder keg waiting for ignition. Eventually, more often than not, this issue explodes into conflict.
When negotiating a custody agreement, invariably the parties have to confront a very real issue that all divorced people with minor children hate thinking about. At what point can your ex-spouse introduce the children to a new person the ex-spouse is dating? At what point can that new person stay overnight in the same house as the children?
While those two issues are related, they are totally separate issues to think about for your Marital Settlement Agreement. The introduction and the first overnight stay (one would hope) are separate events. What recourse do you have if the ex-spouse is doing something you think is risky or ill-advised? What if your ex-spouse takes up with the very next person that comes along without knowing much about them? It happens far more often than one would think.
The answer is that you do have an opportunity to try and mitigate this risk when negotiating the terms of the Marital Settlement Agreement that will control the conduct of both parties going forward. This is the only point in the divorce process where you will have an opportunity to address this. Once the Marital Settlement Agreement is signed, this door closes.
The mechanism you use is called a morality clause (sometimes more elegantly called a paramour clause). This is a flexible term, and you can use this mechanism to address when the first co-habitation with the children in the house would occur.
What a morality clause does in this context is to prohibit overnight romantic guests of your ex-spouse while your ex-spouse has physical custody of the children. You don’t have to care what the ex-spouse does in their free time, but you should care what the ex-spouse does when the children are present.
For example, the following is typical of language you would use in an agreement regarding overnight stays: “no party shall have overnight guests of the opposite sex to whom they are not married or related by blood or marriage while the minor children are in the home during periods of physical custody and/or parenting time.” As a drafting point, it should be noted that the preceding provision assumes a heterosexual couple, but the language can easily be modified when same sex parents are involved.
Often, the terms and conditions of the Marital Settlement Agreement can be incorporated into a court order in the divorce litigation. That significantly changes the means of enforcement. Once the terms of a Marital Settlement Agreement are incorporated into a court order, any breach of that Agreement potentially exposes the party to contempt proceedings. It is an extreme position, but it is one that litigants in a divorce matter are willing to invoke at the drop of a hat.