CHOOSING A PROCESS APPROPRIATE FOR YOU

Kathleen M. O’Connor, Esq.


Once you decide you are separating from a spouse or partner, your most significant decision is choosing the process which is appropriate for you. The choice of Mediation, Collaboration or Litigation will impact you and your children emotionally and financially. The choice will affect your relationship with your children and your partner. This blog discusses the processes available to assist you to obtain an enforceable judgment. It refers to divorce for convenience only. The process choices apply also to termination of domestic partnership and establishment of a parental relationship.

You decided you are leaving your spouse. The decision has not been easy. You need a clear agreement about children, finances and assets. You may feel scared, fearful for the children, angry, and confused. The easiest and safest decision seems to be to follow the lead of family members or friends. Listen to them. They care about you. But remember that how they ended a relationship may not be appropriate for you and your children. This is a summary. Read other material so you understand the benefits and risks of each process to you.

How we divorce has changed in the last 15 years. There are other ways to handle ending your relationships other than relying upon the win/lose decision of a court.

There are four processes available for you to consider. These process can overlap with each other. You need to decide which process is appropriate for your family. Couples now choose the "Kitchen Table Method", Mediation, Collaboration and Litigation. Which you choose depends upon your ability to communicate, the level of trust between you, your mutual ability to make decisions, and the presence and level of any domestic violence. It is not dependent upon the level of income or assets or debts.

You and your spouse can make all of the decisions about your children and your futures. You do not need to relinquish that decision to a court. A court will enter, as an enforceable court order, the agreements which you reach for your family. So although the court is available to make decisions after considering credible, factual and reliable evidence, it is not the only way to end your relationship.

Kitchen Table: During your relationship, many decisions were made at the kitchen table. Deciding upon child custody arrangements and the division of property can still be done at the kitchen table. This process works for couples with simple assets and very low conflict. Be careful to have an experienced attorney review your agreement so that you know you have divided all the assets and properly handled the support of the children as well as their access to both parents.

Mediation: A trained mediator will assist you and your spouse in reaching decisions necessary to provide for the children’s custody, support, and property division. A trained mediator may be from a background of law, finances or mental health. Each profession brings strengths to the process. Mediation works well where couples are able to reach decisions, are honest about assets and want to settle, and where there is no great power differential. The mediator must remain neutral.

Collaboration: A team of lawyers, coaches, and neutral financial experts assists you to identify interests which are important to you. The process uses the skills of a multi-disciplinary team to reach agreements which meet the mutual interests of the whole family. As in mediation, the process encourages respect, re-building of trust, and recognition that you have a different but continuing relationship with your partner. Each spouse has a collaboratively trained attorney, but the attorneys will never appear in court on behalf of either spouse. Additional professionals are available to help with the emotional, parenting and financial issues of divorce.

Litigation: You hire an attorney whose professional responsibility is to advocate for you. The impact of the divorce on your children may not be a concern of your attorney. Most cases which use the litigation process end with an agreement of the attorneys and parties. This process relies upon credible, factual and admissible evidence. Although the process may end with compromise if the judge makes the decision, there will be a winner and a loser. Additionally, the pace of litigation often depends upon the availability of the court.

A note about Domestic Violence:
If there is any domestic violence in your relationship – and certainly if the violence has been long term – you must stay safe and protect your children. Litigation may be your best alternative.