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Debunking the myths of peaceful divorce strategies

by Tony Novak,  updated 4/8/2012

Many articles describing alternate divorce resolution strategies focus on the limitations of each of these methods. These limits seem to be mostly artificial and may serve to discourage couples from considering all of the options. With traditional divorce  costs at $10,000 to $75,000 per spouse in typical upper middle income households, there is a large need for cheaper faster methods of uncoupling. While it is true that these strategies present legal and financial risks, traditional divorce procedures may hold the same or even greater risks.

This article is intended to help present a "level playing field" for choosing divorce strategies by debunking some of the common beliefs about limitations of peaceful divorce. 

1. You need a lawyer.

A couple can go through a divorce without an attorney. Real couples do it every day, so the assumption that it is not possible is simply incorrect. Obviously some marriages are easier to dissolve than others. Marriages without children, shared assets or retirement plans are more likely to be handled without an attorney. Second marriages might be more likely to fit this profile for a potentially successful self-negotiated divorce. 

A peaceful divorce is most likely to be successful when: 1) each spouse has agreed to remain non-confrontational, 2) the individuals are financially and emotionally stable without the other spouse, 3) the couple has agreed to let one spouse prepare the simple divorce paperwork, and 4) family members are kept out of the process. Some couples handle the divorce entirely by themselves using the array of resources online. They typically rely on non-attorney advisers - sometimes just a close friend- for emotional support and guidance. A level-headed friend can act as a "reality check" to see if the process is getting out of control.  

An individual who negotiates his/her own divorce may be tempted to have an attorney review the proposed divorce settlement before signing. This may be a wise legal move but, in my experience, is likely to be a negative emotional experience. A spouse who was initially satisfied with the proposed divorce is likely to be dissatisfied after speaking to an attorney. Attempting to renegotiate by saying "my attorney said..." is unlikely to be a successful strategy. This may force an awkward choice: ignore the advice of the attorney by accepting the proposed divorce or abandoning the self-negotiated divorce process and resorting to a traditional process. Either option may be less satisfying in the end than agreeing to a divorce that was negotiated and agreed between the spouses. 

2. Using an Arbitrator means both parties must accept the decision of the arbitrator.

Actually, non-binding arbitration be a third party is perhaps the most effective way to resolve disputes without pressure. A neutral third party comes to an opinion on the issue of dispute and then tries to “sell” that opinion to each of the spouses. Procedurally this can be more effective because a well-informed neutral person can be far more convincing in communicating a fair proposed solution in a one-on-one setting than in a joint meeting. Only after both parties agree to the does this proposed solution become legally binding. The primary advantage is that this process is time effective and cost-effective because it removes the emotional parties and the legal system from the process.

3. Mediation is “all or none”.

All issued can be arbitrated or any single issue can be isolated to be arbitrated or handled by the court system. Some women, for example, decide to handle child support through the court system and mediate the property settlement, child visitation and other issues. In most cases this is faster, cheaper and more effective than mediating all issues.

4. Arbitration is “all or none”.

The same concept applies as in #3 above. Arbitration can be most effective when limited to those issues that cannot be resolved by other methods.

Consider separating the issues of disagreement from the issues already agreed. Bring only those issues not agreed to an arbitrator or mediator to improve efficiency of the process.

5. Resolution takes __ hours or costs $__ dollars.

Again, it is totally up to the couple making the decisions. The only requires cost is the cost of filing legal documents in your county. This is usually a few hundred dollars. Everything else is negotiable.

6. Legal filings must be done in a specific order or after an agreement is reached.

Legal paperwork in a divorce usually files a common order, but it is not necessary to follow this order. Some child support orders, for example, are entered while a family is still living together sharing finances. Some court filings are possible even while mediation continues in other issues. The timing of legal filings can be a financially critical issue that should not be dependent on the dispute resolution process.

7. Collaborative divorce always uses attorneys.

Some collaborative law processes do not use or require an attorney. But if you are able to find a good collaborative divorce attorney, consider this a blessing.

8. Mediation, arbitration and collaboration are always an option.

In some cases, the resources available within a community will define the alternative divorce procedures that are practical. Some communities simply do not have adequate resources to support  alternative divorce procedures.

 While the number of mediators, arbitrators, collaborative law centers, self-serve Web sites and marital councilors or financial advisers who specialize in this area of practice is growing, relatively few are available now. A couple that might be best served by a non-attorney mediator to resolve a few specific financial issues about the house and retirement plan, for example, may find no qualified financial adviser available in their community. In this case, an attorney who is well qualified in collaborative divorce but less knowledgeable in tax implications or a settlement might still be the best resource. Consider both the specific issues as well as the resources available when choosing a peaceful divorce strategy.

When a divorcing couple can resolve most of their issues outside the court system, it makes no sense to allow myths about limitations of the resolution process to hinder progress toward a peaceful divorce. An simple but effective 3-step approach for getting stated is to: 1) identify and agree on the list of issues on which you already agree, 2) identify and agree on the list of issues you disagree, and 3) agree on a procedure to try next to resolve the remaining issues.

The ultimate goal is to resolve the marital issues at the lowest financial and emotional cost and allow each spouse to move ahead with life as soon as possible. The alternative is to spend tens of thousands in the legal system over a period of two to four years while the lives of both spouses are put on hold. In this context, exploration of a peaceful divorce procedure is almost always worth an extra effort.

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Tony Novak is a member of the Pennsylvania Institute of  Certified Public Accountants, the New Jersey Society of Certified Public Accountants and an accredited member of the Better Business Bureau.

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