A couple of weeks ago I was asked to speak at the Jewish Community Center in New York City about how to choose the right process to Divorce and I thought I would share it with you.
My recent blog “Get Yourself Free” covered briefly the four ways to divorce in the state of New York. I began my talk sharing this information and after a brief survey of the participants, it appeared that we had individuals who would most likely benefit from each process;, all, that is with the exception of Pro Se, or do it yourself. (This method is only for those with a good mind for forms, few assets, knowledge of the law, and great patience. Those four characteristics eliminate most couples from this process.)
So, which method is the best for you and your household? Here is a brief description of the remaining three processes and who might benefit from each.
Mediation
Mediation keeps the process and the outcome in the hands of the couple. It is less expensive and most satisfying to the people involved.
The ideal couple for Mediation is able to work with a Mediator’s guidance to identify the issues to be discussed, recognize where they disagree, remain open to hearing the other spouse’s point of view, brainstorm alternative solutions to the disagreement and together choose the best solution for the family. Couples who mediate may be very angry with each other but if they are open to letting a Mediator keep them on task and focused, then the mediator can help them to work out a settlement that will work for their entire family.
The process nevertheless remains in the hands of the couple and the couple decides the outcome.
Collaborative Divorce
In a Collaborative Divorce, all parties involved, including the divorce coach and the attorneys, sign an agreement not to go to court but to commit to resolving the situation through compromise and negotiation. The spouses each choose a Divorce Coach to be part of the team, who will support them emotionally throughout the process. Or they both work with one coach. Coaches can help couples to learn how to communicate with each other better. Financial Specialists are hired by the couple when needed and information is shared openly. A Child Specialist may be brought in to speak to the couple about the needs of the children, if children are involved.
Collaborative Divorce is an excellent solution for couples who can’t mediate even with the support of attorneys. Sometimes one or the other spouse is at a disadvantage (the result of an imbalance in education, knowledge of finances or children’s developmental needs). Perhaps one has a challenging and disabling mental disorder or personality problem which interferes with his/her ability to understand and communicate constructively in his/her best interest.
As with Mediation, the Collaborative Team works to help the spouses make the decisions that create their settlement that will work for their particular family.
Litigation
In litigation, there is often no group discussion about what may be best for the family. One spouse can decide it’s time to end the marriage and hire a lawyer. When the other spouse is served papers, he/she must hire a lawyer to respond and the litigation process begins. Litigation is the least desirable method but the only method recommended under certain circumstances.
When choosing litigation, keep in mind that about 90% of all litigated divorces end in settlements and never reach the court room. The ones that do end up in court often do so because there are very serious circumstances that prevent one spouse or the other from reaching a reasonable agreement. Couples who cannot speak to each other and hold on to bitter resentments of past events will most likely end up in litigation. In these situations, parties are often seeking revenge and hope to have their “day in court” where they will get the “justice” each feels they deserve. Unfortunately justice is hard to find in matrimonial courts where judges decisions are not bound by clear cut laws and often result from a judge’s best judgement.
Cases that involve domestic violence and parental alienation with spouses unwilling to compromise on important issues such as custody, visitation or support matters essential to the other spouse and/or the children’s survival or safety belong in litigation to protect the victims from further exploitation.
As you can see, there is no one answer to the question of which method is the best for you and your household. Each couple needs to honestly examine their strengths and weaknesses and decide which process will work best with the dynamics in their unique family.
