Holiday season and another new year often accompanies a good deal of soul-searching and taking stock on one's life. For some this leads to divorce, or contemplation of a divorce. While we would never want to minimize the pain and stress associated with divorce, there are definitely distinct approaches with varying fall-outs and consequences not just to you, but to everyone involved.
The traditional "War of the Roses" scenario is the most familiar. Everyone gears up to battle to the last flower vase in a zero sum game that often drags on for years, drains the 401K and leaves lingering bitterness for longer than anyone would like to admit. Sometimes, there just no avoiding this type of process, as when you've got a violent or vengeful spouse, or one who is expert in hiding assets in the Cayman Islands.
For most though, a tensely litigated divorce settlement may be avoided, saving money, time and sparing you -- and your soon to be ex -- unnecessary added stress. And, by working your way through divorce negotiations with focused rational thinking, the kids too, even grown kids, will be spared pain. So how is it possible? There are two alternative processes: collaborative law and mediation. The former involves hiring two collaborative attorneys who pledge, at the outset, that should good faith negotiations breakdown, they will withdraw from the case. That means you have a four way team working together to resolve a family crisis. Oftentimes, collaborative teams call upon outside experts, such as financial neutrals to join in providing objective advice and guidance to the divorcing couple.
Collaborative divorce attorneys, unlike litigators, do not regard your spouse as an enemy. Rather, while you have your own attorney, providing you expert advice and guidance, listening to the interests and concerns of the other party, and understanding what is necessary to resolve the negotiation, is a critical part of the skills both attorneys bring to the table. Beware though, the collaborative divorce process can prove to be an expensive one, as you will meet individually with your attorney, as well as in four-way sessions, so the billable hours do add up.
Finally, for couples who are able to be in a room together, but who may not be able to resolve all their difference over a cup of coffee, mediation may be the best option. In mediation, a neutral mediator, often an attorney by training, facilitates direct negotiations between you and your spouse. The mediator guides the process, helping each of you express what your interests and concerns are as well as consider what your needs are going forward. This provides a foundation for good faith negotiations as you contemplate your post divorce life. The mediator helps each of you achieve your goals to the extent reasonably possible given the realities each of you face.
In the understanding based model of mediation, the parties' values regarding, for example, child support will guide the resolution to the problem. So while a court-ordered result may follow a strict formula, you and your spouse are free to consider the actual budgets you live by, perhaps an inheritance or generous grandparent who has agreed to fund college accounts. In other words, there is an underlying presumption that you both know your budgets and your family's needs better than any pair of lawyers or any judge, for that matter. The court ordered formula often feels like a "one size fits all" that needs to be tweaked to reflect your family's needs and actual lifestyle. Similarly, mediators will help you structure your settlement to take advantage of opportunities to "increase the marital pie" such as informing you of tax deductions and how you may distribute them between you. While many mediators do not require legal review, it is best, and in our practice we insist, that you have an attorney review any agreement prior to signing your long-lasting and complex legal divorce settlement. In fact, legal advice throughout a mediation process can provide insight and information that facilitates the process, helping you understand what a court-ordered result may look like and what your alternative settlement options are.
Needless to say, mediation is generally the most peaceful and always the least costly of the options as you contemplate the beginning of a new year.