Different Processes for Different Families: Options for Separation and Divorce

Divorce is the legal ending of a unified, nuclear family, and managing the feelings that accompany this termination is challenging for all concerned. When children are involved, the time of a family’s separation is also a time of reorganization. The couple makes crucial decisions that impact the family’s future, including how to divide property, how to distribute and spend future income, and how often and under what circumstances each parent will have access to children. One household becomes two, each with their own norms and rituals, and the ex-spouses begin a “co-parenting” relationship that will serve as a bridge between the two homes.

The manner in which couples conduct their separation has a large impact on the family’s ability to reorganize successfully. Chaotic, contentious divorces usually presage poor future communication between ex-spouses; discipline and order suffer, making children more vulnerable to emotional and behavioral difficulties. When divorce processes are rational and orderly, parents are usually better able to co-parent effectively, discipline and structure tends to be maintained, children adapt more smoothly, and all family members have a better chance at successfully facing the next stages of their lives.

A critical determinant of a couples’ ability to separate in a healthy manner is their choice of a legal process that best meets the family’s needs. The utility of a process for a given family depends on circumstances such as the complexity of the issues involved, the financial means of the couple, and the level of trust and problem-solving abilities of the separating partners.

The following descriptions of processes for separation and divorce are adapted from a presentation made in November 2011 by Sue Soler and Karen Freed, two clinical social workers from Montgomery County, Maryland who have extensive experience helping separating and divorcing couples to craft individual solutions for their families:

1) The Kitchen-Table Divorce
In this process, the parties negotiate directly to resolve both the parenting and financial issues. The spouses may or may not consult with one or more attorneys to review a final document, and then file their agreement with the court. This process can work if both parties already communicate well, are willing to be flexible, and have good problem-solving abilities. It is also important that the spouses have an equal level of fairly sophisticated legal knowledge. If these characteristics are lacking in one or either individual, if there is a power imbalance, or if one or more issues are too contentious, it is usually advisable to use a process that includes the assistance of professionals. When this option works well, it can be both inexpensive and relatively expeditious.

2) Mediation
In this confidential process, a trained professional (usually with a background in law or mental health) guides a couple in communicating about issues related to their settlement agreement, including parenting and financial matters. The parties are advised to consult with their individual attorneys throughout the process. The mediator will then help the couple draft an agreement, which can be filed by an attorney. Mediation is most appropriate for couples who have no major power imbalances or overly contentious issues, and are committed to coming to agreement in a low-conflict fashion. Mediation can be relatively inexpensive and efficient, and can also help ex-spouses improve their communication, to the benefit of the future co-parenting relationship.

3) Consultation
As in mediation, when parties enter consultation they meet confidentially with a professional who helps them to communicate about issues related to their settlement. A consultant may also offer substantive advice on issues such as the appropriateness of parenting plans or the practicality of financial arrangements. Parties may go to different consultants (such as accountants or mental health professionals) for different concerns; generally speaking, attorneys do not act as consultants because they cannot ethically advise two opposing parties. Throughout the process it is important that each partner confers with their respective attorneys, who can also file the agreement with the court. This process is useful for couples who need more guidance on particular issues than mediation provides. The cost of consultation is usually not onerous, and the process is nearly always briefer than litigation.

4) Attorney-Negotiated Agreements
In this process, each spouse retains an attorney, who may provide legal advice on any issues related to the separation, including division of property, financial support for spouses, and custody. The attorneys then communicate with each other (attorneys sometimes advise against communicating with the other party), and file a Settlement Agreement with the court. This process is appropriate for couples who want more legal support and guidance than they would receive in the above processes, but who are still committed to agreeing in a low-conflict fashion and do not have major differences which they wish to contest. This option can be fairly inexpensive and efficient. As long as the attorneys file no motions with the courts, the process is confidential. The process has drawbacks; the couple loses an opportunity to work things out without the assistance of professionals, and because the attorneys’ primary function is to advocate for their client, the agreement may not be one that is optimal for the entire family. Finally, it runs the risk of escalating into costly litigation.

5) Litigation
In litigation both parties contest one or more issues through the courts, usually with the assistance of attorneys. This process can be necessary when one or both partners are abusive or unreasonable in their demands, or the parties cannot resolve one or more issues via negotiation. Harmful unintended consequences of the litigation process can be severe; aggressive legal actions can lead to reactions, generating greater costs, a prolonged process, and potentially a high degree of disorder. As attorneys focus on zealous advocacy, the needs of the whole family may recede into the background. High-conflict litigation often presages a contentious co-parenting relationship, resulting in a lack of discipline and order. In addition, litigated settlements often lead to more litigation in future years. For all its pitfalls, if one or both of the parties is mindful of the effect of the divorce process on the family, litigation can be contained, and may settle issues not resolvable by other means.

6) Collaborative Divorce
In this non-adversarial process, conducted outside of the court system, both parties begin by agreeing that they intend to avoid litigation, and that they will not use any information gained from the collaborative process if they do so. The parties and their respective attorneys then conduct face to face meetings in an effort to reach an agreement. Other professionals may advise on a variety of concerns, such as financial planning or child development. Each client may also choose to have a “divorce coach” who helps support and guide them through the process. This process is most useful for couples who have a number of differences, but who wish to avoid litigation and develop their ability to co-parent. The advantages of collaborative divorce are several, including confidentiality and the opportunity to obtain substantial guidance and support. Complex collaborative divorces can be costly, though usually much less so than litigation.

7) Hybrid Models
As the options for separation and divorce grow, some couples are now seeking out the services that meet their circumstances rather than opting for particular “models”. Even in the midst of litigation, some individuals make use of child development specialists so that they can advise their attorneys as to what parenting plans to propose; couples using any process may utilize divorce coaches to help them cope.

Finding what works

No one process is best for every couple. Low-conflict couples who are knowledgeable about the legal process may be able to divorce at a “kitchen-table”, while others may benefit from the guidance of a mediator or consultant. Couples who have minor differences may successfully make use of the guidance of lawyers via attorney-negotiated agreements, while clients who wish to save their families from the cost and heartbreak of difficult litigation, and develop their co-parenting skills in the process, may be able to make use of collaborative divorce. Even when litigation is necessary, coaches or consultants can help contain the process. Whatever option a couple chooses, if they enter divorce with the knowledge that they are not just “fighting over the spoils”, but laying the foundation for the next stage of their family, they can help themselves and their children adapt to the loss and to chart a course for a brighter future.

Posted by Jonah Green

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