Oct 31, 2017

Choosing A Path Forward When Your Marriage is Ending

Many people approach family law attorneys with questions regarding divorce and most of them do not understand the available and varied routes for dissolving a marriage. Often, individuals have heard the terms but they do not understand the differences, benefits or detriments to selecting one path or another to divorce. This lack of information makes it difficult for individuals, who are already in a stressful situation, to move through their divorce process with direction, focus and the least amount of frustration and cost. There are four main avenues that will lead you to a divorce decree: the Litigated Divorce; the Collaborative Divorce; Mediation and Divorce; and what some attorneys refer to informally as “the Kitchen Table Divorce”. These paths to divorce are not the only routes but tend to be the most common.

The Litigated Divorce
This is the process that frequently comes to mind for most people through popular culture exposure to TV and movies. Each spouse has their own attorney and each attorney is working for that client’s interests only. Some issues will be resolved by agreements negotiated by the parties’ attorneys. But, when agreements cannot be reached, some issues will be decided by a Family Court Judge, after each party testifies in Court about issues relating to their finances, children, assets, debts, and all the private issues that define a marriage.

What are the main benefits of a litigated divorce? The main benefit is a binding decision by a neutral Judge with experience and wisdom and an opportunity to be heard. But, those same positives can be seen in a negative light. By putting decisions about private family matters, like child custody, child support, distribution of assets and debts, length or amount of alimony into the hands of the Judge, both spouses relinquish any control that they have over the outcome. They give up the right to craft a solution that would be in their family’s best interests. The two adversaries may feel that the decision was arbitrary or rushed and they may feel that their testimony was not considered by the Judge. An experienced family law attorney would say that the Family Court has many cases to hear and no amount of testimony that the Judge will hear will enable him or her to know a family as well as the two spouses understand their own family. A litigated divorce can be slow, significantly expensive and lead to damaged relationships between the two parting spouses, their children and their extended family. The ability to work with your former spouse to make parenting decisions together is often irretrievably damaged after a litigated divorce.

The Collaborative Divorce
This is a divorce process where each spouse hires a collaboratively trained attorney to represent and advocate for them and the parties sign an agreement that they will work collaboratively and respectfully to reach agreements regarding support, custody and the division of their marital assets and debts outside of Court. The parties agree that they will share information about assets and debts and work with neutral advisors, therapists or financial planners, if necessary. The major factor that distinguishes this process is that both spouses are highly motivated to reach a resolution and agree that they will not go to Court on any issue but will work to stay in this process to end their marriage. If they terminate the Collaborative process, both spouses must hire new attorneys and start the divorce process anew. This creates a financial incentive to continue in the collaborative process. The benefits of this process are many- increased privacy, lower cost, the pace moves as the parties direct, and the parties have ownership over the negotiated outcome. One of the most significant benefits is that during the collaborative process the spouses’ relationship and communication skills are not damaged and may even improve. The benefit for families with children is important in that the parties do not stress their parenting relationship further and their children will never see the inside of a family courtroom. This process is not without its weaknesses. The spouses must be careful that they retain a well-trained collaborative attorney, who will keep the process collaborative and not adversarial. If both parties fail to keep their commitment to the process, the result will be the cost of hiring new attorneys and starting over and most likely heading to Court.

Mediation and Divorce
In a mediated divorce, the two spouses work with a neutral mediator. In Pennsylvania, the mediator is not required to be an attorney; however, it is recommended that the parties engage a mediator, who is also a family law attorney, who will be able to provide appropriate legal information regarding the issues that will arise in the process. The Mediator will meet with the parties to help them negotiate and reach decisions in a civil manner regarding the dissolution of their marriage. The mediator cannot provide legal advice to the parties but may provide legal information. A mediated divorce may be lower in cost and it allows the spouses to reach their own agreements with the neutral mediator’s help and may create less conflict than the litigated divorce. The process can be speedy but only if both parties are committed to it. Successful mediated divorces require that both parties understand and disclose all marital assets and debts. As a neutral, the mediator cannot advise one party or the other whether the agreement that they are working toward is fair. The mediator’s role is to help the parties get to final decisions and not to assess the balance of the result. The mediator will recommend that both parties seek independent legal advice. If Mediation is successful, the parties will have a written memorandum of understanding that they can review with their attorneys to be implemented into a legally binding agreement as part of their divorce.

The Kitchen Table Divorce
An informal name for a common solution to ending a marriage. The parties agree that they must divorce, they know their assets and debts, they have discussed custody schedules and child support and have a plan. These spouses can talk to each other and they are on a level playing field. They often have a marriage that is shorter in length and lighter on assets. One spouse hires an attorney to represent him or her only and the other spouse may or may not be represented at all. The spouse with an attorney directs that attorney to draft a formal agreement based upon their “kitchen table” agreement and all the other pleadings necessary to obtain the divorce decree. This process can be the least costly and the swiftest and allows the parties to keep their conflict low and their ownership of the agreement high. But, this process is not without flaws. The spouses may fail to consider important issues or fail to disclose assets or debts. If one party is not as knowledgeable about the financial aspects of the marriage, that party may not be effective at negotiating on their own. The spouse that does not hire an attorney may feel unprotected and vulnerable during the process and have no outlet for their questions or concerns. There is no neutral party that can solve conflicts or assist in reaching an agreement.

Each path to divorce has its advantages and disadvantages. If you and your spouse may be heading toward divorce, it makes sense to consult with a family law attorney with experience in all roads to divorce and seek advice on the path that will work best for you and your family.

By: Judy Hayman, Esq.

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