How to begin a divorce or separation?
“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.” Sandra Day O’Connor
If you have made the difficult decision to leave your marriage, the way you begin the process will determine not only the financial cost and emotional suffering the family will endure, but it will also establish the nature of your future relationship with your family. Our court system was not designed, and is not equipped, to handle every legal dispute that arises.
If your spouse is unaware that you no longer desire to be married, try talking with him or her about it in a therapeutic setting. A therapist can be very helpful in focusing on the big issues, such as parenting the children, and reducing our natural inclination to “fight or flee” when confronted with a fearful situation.
It is important that you choose the legal process that it appropriate to resolve the issues between you and your spouse. The adversarial litigation process is only one of several options you have, so knowing the full range of options is critical. The vast majority of cases in the legal system settle by mutual agreement and, knowing this, it makes no sense to start with litigation unless you absolutely have to.
What follows is a range of dispute resolution options that are available to everyone involved in a family law dispute:
- Kitchen table resolution: You and your spouse sit at the kitchen table work out each and every issue. Once you have scratched out the outline of an agreement, a lawyer can draft your agreement, file the required paperwork, and assist you through the court process. The lawyer can only represent one person and it is always a good idea for the un-represented person to have an second lawyer review any written agreement before it is signed.
- Mediation: If you can not reach an agreement with your spouse by way of a “kitchen table” meeting, you may want to consider hiring a mediator. This is a neutral person, usually a family law attorney, who will meet with both of you in order to fashion a resolution for your family. A mediator will help you arrive at creative solutions to resolve areas where you may be stuck. A mediator cannot, however, give legal advice to either of you as they are neutral. Once an agreement is reached, an attorney should be retained to file the necessary paperwork.
- Collaborative Law: Collaborative law is a non adversarial process where both parties have the benefit of independent legal counsel, but all parties and their counsel agree that if the matter can not be resolved by agreement, the parties shall choose different counsel for the litigation phase. This means that the parties and their attorneys are free to engage in discussions without fear that anything they say will be used against them in court. Collaborative Law also involves the use of other professionals when needed, such as a child specialist and financial neutral, who help resolve difficult custody and financial issues in a healthy and productive manner.
- Binding Arbitration: The formal litigation process is inefficient, time consuming and extremely expensive. Often issues such as asset division and support simply need a decision maker and can be resolved by way of binding arbitration. Arbitration is informal, faster and vastly less expensive that formal litigation. The downside is that an arbitration order is generally not appealable.
- Litigation: As a final option, after all other options have been considered and/or tried, the litigation process is available. For all practical purposes, litigation has become an option available only to very wealthy individuals and large corporations. It is simply not wise for the average family to begin a divorce in this way. Money that could be used to benefit the family will instead go to lawyers and guardians. Litigation in family court should be reserved only for cases where one party is incapable participating in any other kind of meaningful negotiations due to mental health, substance abuse or violence issues. Issues such as adultery and most substance abuse issues are routinely resolved out of court by way of mutual agreement.
When all available dispute resolution options are clearly laid out it is obvious that the litigation process was designed as a place of last resort. The question then becomes why is it so overused?