Tuesday, May 6, 2008

Splitting up

"A divorce is like an amputation: you survive it, but there's less of you.” - Margaret Atwood

What started as a partnership in marriage (or coming together) has become a (perhaps unwitting) partnership in divorce (or splitting apart.) It is a long and painful process, particularly when there are kids or real estate involved. Which is the best process for you?

The Starbucks Approach. You and your partner can sit down over a cup of coffee and work out the details together. This works well if you have good communication, if neither of you have much property, and if there are no kids involved. It is obviously the cheapest.

Mediation. Here, you and your partner sit down for a series of meetings with a trained divorce mediator (usually an attorney or mental health professional). The mediator is a neutral person who structures the conversations to help you address the issues in conflict, and coming up with an plan to which both of you agree. The mediator then writes up the terms of that agreement. I suggest that each partner show it to an independent review attorney. The mediator or one of the attorneys can then file an uncontested divorce for you, incorporating that agreement. This works best for couples who are someone evenly matched in terms of power, who trust each other not to be hiding assets, who want a good working relationship after the divorce, and who want the terms of their divorce to be private. Mediation allows you to decide what is best for your family, and to shape a plan that is tailored to your family's needs. It is less expensive than litigation.

Collaborative Process. The partners each have their own attorneys who “hold the meditative consciousness.” In a series of 2-way and 4-way meetings, the attorneys guide the partners through the collaborative process, sort of a modified mediation. Collaborative attorneys are specially trained in mediation as well as divorce. The key here is that if the process falls through, each partner must get a different attorney to represent them in court. In other words, the parties agree from the beginning that they will not go to court or threaten to go to court in this process. The collaborative process often involves neutral child specialists and financial planners who can help the partners come up with plans for allocating financial resources and child-care responsibilities.

This is best for partners who need a little more support than those in mediation, but still want to retain control over the process, and stay non-adversarial. This is best for partners who want to keep a good working relationship in the future, and basically still trust the other to be honest about finances, and who want to keep the details private. It is more expensive than mediation, but still much less than litigation.

Contested divorce. This is the most “traditional” form of divorce, where each side has an attorney, whose job is to zealously advocate for their client. A contested divorce may be necessary if you think that your partner is being dishonest about his or her assets, and about how much money he or she earns. It can also be useful if there is an imbalance of power, or if there is any threat of physical violence. While nearly all contested divorces are settled out of court, there is often a lot of time, money and goodwill exhausted before that actually happens. If the case actually goes to trial, the judge will decide how much time you spend with your children, how to divide up your assets, and how much one will pay the other for spousal or child support. It may be necessary when there is an imbalance or power (or domestic abuse), where there are serious mental illness or addiction issues, or where one partner may be hiding assets. It can costs tens of thousands of dollars, and is often the most stressful for the partners and for the children involved. It can also drag on for months or even years.

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