How to Evaluate Your Options When Contemplating a Divorce

by Rita Pollak

Published on October 26, 2011 by Mark Banschick, M.D. in The Intelligent Divorce

Are you getting divorced? Was it your decision, made after a lot of soul-searching, perhaps some counseling and many sleepless nights? Or was the decision made for you by your spouse? Did it come unexpectedly or after much mutual unhappiness, some counseling and many sleepless nights?

The answers to these questions are likely to influence what you chose to do next. Notice, I didn’t say what “happens next,” because that is too passive. It doesn’t just “happen.” You and your spouse will choose how to divorce and you have options.

Do you know what they are and how to become educated about them?

Once the decision has been made, why does it matter what process you use to get the divorce? Wasn’t it hard enough to get to this point? Why not just hand over the whole mess to an attorney or a judge and be done with it?

There are actually some circumstances where giving that kind of power to an outside authority might be the right thing to do, but those instances are truly rare. If there are issues of serious, chronic and dangerous abuse, physical and/or emotional, in your relationship, then you might need the protection of a court system with some safeguards in place (and we know they don’t always work).

On the other hand, most couples really can manage the transition from married to no-longer-married with the assistance and support of well trained professionals. There was a time in every relationship where you and your partner were successful at problem-solving, at compromising, at making decisions together. This was true even if the power dynamic and the knowledge dynamic was not balanced. In fact, in every relationship we complement each other’s areas of competence, areas of interest and spheres of responsibility.

If you can choose a divorce process which plays to your strengths as a couple and doesn’t exploit the anger, sense of betrayal, fear and anxiety that accompanies every divorce, you will be laying the groundwork for a healthy life after divorce. It matters that you choose a process which best reflects your own sense of integrity or you will prolong the pain of this divorce far into the future.

Collaborative divorce and mediation, done with very skilled professionals can move you through this difficult time, with respect and care.

If you are considering mediation you should know some basic elements of the process:

1. The mediator is neutral and cannot give you legal advice. Even if the mediator is an attorney, s/he cannot represent either one of you or advise either one of what course of action to take.
2. Mediation is completely voluntary so you both have to agree to be in mediation and either one of you can terminate the process.
3. It is most common that you will attend the mediation without legal representation so you have to be comfortable advocating for yourself. You may have advice of counsel before the mediation session but you will have to state your own positions and evaluate proposals.
4. Mediation requires you to fully disclose all the information relevant to your situation.
5. Mediation is nearly always successful and the parties feel satisfied that they have created an agreement that meets the needs of their family.

Collaborative law is another popular out-of-court dispute resolution process. It is similar to mediation is some ways and it differs from mediation in very significant ways:

Similarities:

1. Collaborative law is voluntary so you both have to agree to be engaged in the process and either one may opt out at any time.
2. You are required to be completely transparent and fully disclose all the information pertinent to your situation.
3. 98% of the time the collaborative law process results in an agreement which reflects the goals of the parties, meets the needs of their family and lays the groundwork for effective communication going forward.

Differences:

1. Each party is represented by a specially trained collaborative attorney. You are never alone ‘at the table’ to advocate for yourself.
2. The negotiations happen in face-to-face meetings, with the parties always present and fully engaged.
3. If the process fails, for any reason, the attorneys have to withdraw and cannot become your litigation counsel.
4. Often other professionals are incorporated into the collaborative process, such as a neutral financial expert who works with both parties, or a neutral coach to help manage the emotional issues which are sure to come up in any divorce. If the case does not conclude successfully the other professionals have to withdraw as well and cannot be used in the litigation.

When making a decision about which process works best for you, for your spouse and for your family, think about the distribution of power and knowledge in your relationship and try to picture yourself ‘at the table’ in each process. For example, in a situation where the husband is a businessman who has handled the family finances and is accustomed to making “deals”, and the wife is a school teacher who is very experienced in her field, has managed the home and the lives of the children and does not feel competent when discussing money, which process would you recommend? What has been their couple dynamic? Has the wife, over time, deferred to him when making financial decisions and has he allowed her to make all the connections regarding the children’s schooling, socializing, and care? They are each potentially disadvantaged in different spheres. Which process will help balance the distribution of knowledge and power as they divorce?

Since the choice is yours, educate yourself, ask good questions, and think about how you will feel once the divorce process is over and you look back at how you handled yourself, how you created a ‘future after divorce.’