When people marry they often say that the union is “till death do us part” and then at a later point in their lives realize that the marriage needs to end long before death. At this stage it is likely that the prevalent emotions will be anger, disappointment and confusion.
Assuming that you and your spouse have made attempts to resolve the issues and agree that the union must end you then need to decide how to do it. In simplest terms there is only one requirement and that is that a court declares the marriage dissolved. How the court decides that is up to you and your spouse and the approach you take.
Most people when they think of divorce automatically think of lawyers combating each other, arguing over who will get what, disparaging the other party and running up a huge legal bill. We only need to think of the movie “War of the Roses” or the opening scene of “The Wedding Crashers” to see how combative the process is. The formal name for this is litigation.
Fortunately there are alternatives that can be less stressful and combative. One choice is to pursue a mediated settlement which involves both parties meeting with a third party neutral and through a series of meetings attempt to address and resolve all the issues which will include alimony and child support, custody and visitation and property settlements. The role of the mediator is to guide you and you to reach your own agreement. When an agreement is reached then a Memorandum of Separation will be prepared and each party will then need to have it reviewed by their own attorney.
That neutral can be an attorney, mental health professional or someone simply trained in mediation. Each state has its own statutes as to who can practice. Always keep in mind that if the mediator is an attorney that they are not acting as an attorney in this instance and will disclose that fact to you.
This path works well when both spouses are emotionally healthy and there have not been instances of emotional or physical abuse. Quite honestly, when domestic violence has been part of the relationship most mediators will suggest that you consider litigation.
One of the newer methods or models is known as the Collaborative process which combines the main aspects of litigation and mediation which are the parties having representation by legal counsel and self determination of the outcome. The goal of the Collaborative process is to achieve a solution that works today and will work tomorrow, one that is forward looking taking into account the emotional well being of the entire family unit.
The defining difference between Collaborative and other forms is that all the parties agree that what occurs during the Collaborative meetings is confidential and cannot be used in a litigated case and should the process break down the attorneys CANNOT represent their clients in another matter.
Put another way, should the process become unworkable then all the money that has been invested into the process is wasted. While this can be a powerful incentive to keep the process alive some jurisdictions view it as perhaps unnecessary pressure on the participants, a form of coercion.
The Collaborative process is capitalized to differentiate it from the situation where everyone is simply being agreeable and collaborating. Never forget this difference; it could be a costly lapse.
More information can be found on the Collaborative process at www.collaborativepractice.com which is a membership organization aimed at promoting this worldwide in various aspects of the law.