With over 27 years as a New York attorney, half specializing in matrimonial and family law, I have seen it all when it comes to divorce, but I have become dismayed by how the system deals with families. To the point where I believe that family court should be a last resort, not the first stop, as it often seems to do more harm than good. I wrote Divorce Like a Pro to show families that there are other options besides litigation. Here are five lessons I hope you take to heart as you consider divorce.
Lesson #1: Divorce Shouldn’t Be an Ugly Process
Yes, divorce is a difficult transition, emotionally, but trying to destroy your spouse’s reputation, finances, livelihood, and/or their relationship with your children won’t lessen the pain. And any lawyer that advises you to go for the jugular likely isn’t acting in your family’s best interests over the long term. What’s more, you may have friends, family members, and coworkers who encourage this winner-takes-all strategy as well, but ultimately they aren’t the ones who have to live with the aftermath. This approach only adds stress, deepens the fracture, and can leave children with lasting trauma. The truth is that those stories of one spouse taking everything and leaving the other with nothing are nothing more than urban legends.
Lesson #2: There Are Four Paths to Divorce
That’s right; litigation in court isn’t the only way to divorce your spouse. There are actually four paths to divorce, which include:
- Kitchen table talks – You and your spouse sit down together and resolve child and spousal support, child custody, and the division of assets and debts yourselves and then file for an uncontested divorce.
- Mediation – Here, you receive some professional, neutral support in maintaining communications and ensuring open disclosure as you work towards an amicable divorce settlement.
- Collaborative process – In this option, a divorce coach, collaboratively-trained lawyers, and child, financial, or other specialists will be involved as needed. A collaborative process can be effective in situations with special needs children, where there are businesses between the parties and/or a power imbalance.
- Court litigation – This is when you lawyer up and head to court to settle your divorce.
As you can see, the first option is the least expensive and has the least amount of intervention, and the degree of expense and outside intervention increases with each path to follow.
Lesson #3: Mediation and Arbitration Aren’t the Same
In mediation, you and your spouse enlist a neutral third party who acts as an intermediary to offer opinions, brainstorm solutions, and guide you in communicating effectively, as well as to keep you focused and on track in negotiating an amicable divorce settlement. The mediator will not make these decisions for you.
On the other hand, arbitration is when both parties present facts that support their position as to what they believe should be the outcome of an issue. Then, after hearing arguments and reviewing information from both sides, the arbitrator will either side with one party or make a decision that falls somewhere in between each party’s position. Arbitration can be binding or non-binding and is usually used in divorce cases that are on the verge of trial. As such, it typically involves attorneys who advocate to the arbitrator.
Lesson # 4: Mediation Can Work in High-Conflict Situations
Yes, both parties must work together towards an amicable solution in mediation; however, that doesn’t mean this option is out in a high-conflict situation. Quite the contrary, I believe most anyone can benefit from mediation. It’s important to screen for a history of domestic violence or power imbalances, so the mediator knows how it could impact the process (ideally, the mediator has expertise in this area). As such, mediation can actually be a safer forum for victims of domestic violence, as it sets ground rules and holds the offender accountable.
Lesson #5: What to Expect if Litigation Becomes Necessary
If mediation wasn’t successful or your spouse refused to try, then litigation may become necessary. Your first step will be to find a lawyer, and then, in general, the divorce process follows this cadence:
- The divorce petition is filed
- Hearing on an interim agreement regarding spousal support, custody, and visitation of children
- The court may require mediation
- Evidence will be gathered by both sides to prove their case
- Settlement offers will be presented
- If no settlement is reached, you will go to trial
But you can also expect these things from court litigation of your divorce:
- A significant amount of time, as the process typically takes 12 to 18 months to resolve.
- A significant amount of money; all that time your lawyers spend litigating your case will cost you.
- A loss of control as you’re allowing a stranger in a black robe to make important decisions about your life and children.
- A lack of privacy; all your dirty laundry will be aired publicly in court.
- An even more strained relationship with your spouse because litigation pits you against each other.
For more information, check out my new book, Divorce Like A Pro: A Better Way To Break Up, here.
