Divorce Without Dishonor

Did you read about the couple in rural Cambodia who took a literal approach to dividing their assets? At the termination of their 18-year marriage, the couple actually sawed their wooden house in half. The husband and his relatives removed every splinter of one half of the couple’s former two-room home. The wife’s half of the home gives new definition to the term “picture window.” Sitting on its stilt base, one complete side of the home is now open to the elements, providing a commanding view of the village.

It’s a unique, if extreme, solution to property division worthy of King Solomon. The division of property in modern American marriages is necessarily more complex. Arguments over pensions, retirement funds, her stuff, his stuff and our stuff can make property division an acrimonious and stressful process. But it doesn’t have to be.

Collaborative family law allows a couple, not the court, to control how they divide their property. By encouraging mature, cooperative, non-combative behavior and agreeing to avoid litigation, a couple, supported by attorneys dedicated to collaborative family law, can negotiate a mutually agreeable settlement outside of court.

When you and your spouse decided to have a child, it was most likely a joyful time. From the moment of birth (and even before that), children steal your heart. You love them, care for them and protect them. You dedicate yourself to keeping your child safe, healthy and happy. Divorce shouldn’t change that.

When divorce becomes a battlefield, your children are the casualties. During divorce, parents must put aside their anger and emotions when making decisions about their children’s custody and support. They must separate their adult differences from the needs and welfare of their children and work together to make decisions that will support and provide for their children’s physical and emotional well-being. Therapist Rosalind Sedacca calls this child-centered divorce.

"When you create a child-centered divorce, your children win — on every level. Parents who make a concerted effort to sit down with each other and discuss the future well-being of their kids together, keep their perspective where it really belongs — on the children," says Sedacca in a recent article on the website Child-Centered Divorce. (Click here to read the entire article.)

Sedacca suggests divorcing parents ask themselves the following questions:

• What

Many people and some lawyers believe that collaboration and mediation are the same thing. Though there are similarities, each process is distinctly different and offers divorcing couples different options in separating their personal, family and financial relationships.

In our October 10, 2007 post, we defined collaboration and mediation as two distinct processes. Let

Many people think mediation and collaborative divorce are the same thing. Some members of the legal community may even indicate there is not much difference between the two. While it is true that collaborative divorce practice has its roots in mediation, it is a distinctly different process.

What is mediation? In mediation, a neutral third party helps a couple define their areas of disagreement, then leads them to draw up a legally-binding agreement. The mediator directs and controls the meetings which generally involve only the mediator and two disputing parties. The mediator cannot provide legal advice or advocate for either side but parties may hire and consult their own attorneys between mediation sessions.

Sometimes a divorcing couple chooses mediation, other times mediation is ordered by the court and may be limited to a particular issue. Mediators receive special training and are regulated by each state. Agreements reached in mediation are legally binding and entered with the court. A mediator is forbidden to reveal what was discussed during mediation and cannot be called as a witness should the mediation process fail and the case go to court.

What is Collaboration? Collaboration is a team process in which both parties and their respective lawyers meet together in four-way meetings to cooperatively resolve divorce issues. Each attorney advises and supports their own client, but they may also speak to each other during the process. The couple work together to develop an equitable agreement that meets the needs of all parties, particularly the children.

Meetings rely on the voluntary and free exchange of information and emphasize respect, cooperation, honesty and professionalism. There is emphasis on developing positive communication skills as a basis for future contact. Additional advisers such as financial or child specialists may be hired jointly to advise all parties. There is no timeline and parties may meet as frequently and for as long as it takes to arrive at agreement.

Collaborative lawyers and team members receive specialized training and many subscribe to the ethics of the International Academy of Collaborative Professionals. In addition, collaborative lawyers must have practiced family law for a minimum of 5 years. Agreements reached through the collaborative process are registered with the court and become legally binding. Should the collaborative process fail, the attorneys and advisers are prohibited from representing either party in court.

Next time: Collaborative Divorce vs Mediation: What IS the Difference?

For more information on both collaborative divorce and mediation, click here to visit the Family Law section of Michael Mastracci

A divorce is so much more than who gets the couch and who keeps the cat. As a traumatic life-altering event, divorce compares to the death of a beloved spouse. What happens in court is the tip of the iceberg. Divorce changes every aspect of your life and affects your family, friends, emotional health and physical well-being.

There are four distinct divisions that take place in a divorce:

• Legal divorce. The business end of divorce, the legal divorce is granted by the court. It divides your assets and debt and sets the ground rules for custody, visitation, parenting decisions, financial obligations, and sometimes behavior.
• Social divorce. Your friendships and lifestyle will be affected by the divorce. Your divorce will polarize your friends. Many will choose sides even if you don’t demand it. They may express greater loyalty or intense anger toward one spouse. They may resent the change in the status of your friendship or be unwilling to deal with the intense emotions that are triggered by divorce. They may choose to distance themselves as a protective measure. Your new status as a single will also create new challenges. Most people have individual friends and couple friends. As a single you won’t fit and will find yourself being included in activities less and less frequently. Your lifestyle may also change. You may have to move into a smaller living space, go from a single-story home to a one or two-bedroom apartment. The changes in space and privacy can be a difficult adjustment.
• Emotional divorce. As in grief, you will travel through a range of emotions as you cope with the divorce and its aftermath: denial, anger, bargaining, depression and finally acceptance. Divorce shakes self esteem to its very core. It may take months or even years of counseling to redefine yourself outside of your marriage and regain a positive sense of self. You may need the help of a trained counselor or therapist or anti-depressant drug therapy to work your way through the emotional aspects of divorce.
• Physical divorce. Your actual separation from your spouse and the physical division of your belongings may be harder to accept than you anticipate. One or both of you may need to leave the family home and find another place to live. Many of the familiar touchstones of everyday life — objects you’ve grown accustomed to seeing or using every day — will no long be part of your life. The sense of loss can be acute and surprisingly disorienting.

To successfully weather divorce and build for yourself a new place in the world, you must deal with all four aspects of your divorce.

If you and your spouse want to maintain control over your divorce but need assistance resolving certain issues, a mediator can help. A mediator may sometimes act as a referee or counselor, but he is primarily a guide. He’ll help you define the issues that divide you, let you know what the law says, suggest options, help you analyze problems, and guide you toward a solution. For a more detailed explanation of mediation, read our July 18, 2007 blog post.

How does mediation work?

• Select a mediator. Mediators are trained professionals, often attorneys or therapists, with special training in mediating divorces. Your attorney may be able to recommend a professional mediator or you can call your local bar association, mediation association or courthouse.
• Set a schedule. You and your spouse will meet with the mediator for six to ten sessions, each lasting one to two hours. It’s important to meet once a week to keep things moving forward.
• Create a checklist. You and your spouse should each make a list of issues to be decided. Your mediator should be able to provide a list of typical items that require discussion or decision in a divorce: living arrangements, bill payment, custody, visitation, child support, property settlement, alimony, division of attorney and mediator fees, etc.
• Work through the issues. Urgent issues like where each spouse and the children will live and how bills will be paid during the divorce process will need to be decided immediately. Some decisions may take longer to reach and may need to be addressed in stages as potential options are discussed. The goal of mediation is to arrive at a settlement agreement.
• Finalize the agreement. Once you and your spouse have arrived at an agreement, either your mediator or attorney will prepare the legally binding settlement document and file it with the court.

Mediation is one way to decrease the stress and expense of divorce. Mediation gives control back to the couple by allowing them to make decisions about their divorce issues with the assistance of a neutral third-party mediator. It allows you both to make important decisions about your future instead of abrogating them to an impersonal judge whose decisions will be based solely on points of law.

• The key to successful mediation is compromise, says retired family law attorney Brette McWhorter Sember in her book No-Fight Divorce. Divorce doesn’t have to be war. No one wins in a divorce; loss is inherent. Mediation is a way of mitigating that loss and finding a way to compromise so both parties feel a fair and livable decision has been made.
• Mediation is a problem solving method. Untangling two lives (and the lives of your children) is a complex process. A mediator can help you organize the decisions to be made and process them in an orderly manner. A mediator will help you discover acceptable solutions to problems that divide you.
• Mediation emphasizes self-determination. With the help of the mediator, you and your spouse make your own decisions about your divorce issues. The mediator is there to help  both parties understand the law, each other’s needs and rights, and all the possible options so you can make informed decisions.
• Mediation must be flexible. There are no absolutes in mediation. It is designed to allow both parties the opportunity to create solutions that are tuned to the needs of your particular family. Decisions are not imposed upon you, but chosen by you.
• There is no time limit to mediation. Unless your mediation is court ordered, in which case the court may set a time constraint on the process, you and your spouse can take your time. Mediation is a process. You may need to stop and think about things or talk through issues before coming to an agreement. Mediation allows you to take as much time as you need to reach the important decisions that will affect your life and the lives of your spouse and children.

Mary Whisner at shlep, the legal self-help blog, points to an article on "The Many Costs of Conflict"

What do you make of a new book on divorce for women by attorney Sherri Donovan: Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce–Alimony, Custody, Child Support, and More.

Mary Whisner at shlep, the legal self-help blog, points to an article on "The Many Costs of Conflict" by dispute resolution consultant Stewart Levine, which describes the heavy financial, emotional, and other tolls that conflict exacts.

According to Levine, these include:

Direct Cost: Fees of lawyers and other professionals

Productivity Cost: Value of lost time. The opportunity cost of what those involved would otherwise be producing.

Continuity Cost: Loss of ongoing relationships including the "community" they embody

Emotional Cost: The pain of focusing on and being held hostage by your emotions
It made me wonder what shlep and Levine would make of a new book on divorce for women by attorney Sherri Donovan: Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce–Alimony, Custody, Child Support, and More.

The pugilistic theme doesn’t end with the title: the book jacket is adorned with a photo of a blood-red boxing glove. Chapters include "Are You Ready to Rumble?", "Divorce Ain’t for Sissies", "Sizing Up Your Opponent", "Conditioning for the Fight of Your Life", and "Psyching Up for the Fight".

It should leave us all asking what kind of casualties result when divorce is framed as either prizefight or combat.

Generally speaking, mediation can never hurt when trying to resolve child custody and child access issues.

            It is very common to feel nervous and even intimidated by the mediation process. By being cognizant of some important considerations, you can ease the tension and focus your efforts on becoming proactive in a solution oriented exercise. Your mindset going into mediation is vital to its success. It is indeed an exercise and proper mental conditioning is essential.

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