By Belinda Rachman, Esq
This will probably surprise you but divorce is NOT a legal issue, it is a personal issue and most people should get a divorce with little or no lawyer involvement. If you want to have the smoothest divorce possible the solution is to resolve your problems outside of court.
1. Avoid Lawyers and Courts as much as possible! The first thing you should know is that our legal system is not child-focused or family-friendly; it is adversarial by nature. The emotional and financial price you pay when you each hire separate divorce lawyers is higher than you can now imagine. Before I became a divorce attorney I was a special education teacher. My Masters is in Special Education, focusing on teaching severely emotionally disturbed children, so I came to the law with a powerful bias to act only in the best interest of the children. That is NOT the focus of most divorce lawyers. Many divorce lawyers are very comfortable spending a client’s college fund instead of quickly and economically helping the couple to negotiate a fair deal. After 8 years of litigation and witnessing the total financial and emotional devastation of too many families, I vowed to no longer take adversarial divorces and to do only divorce mediation. In the following 3 years, after working with over 185 couples with 100% success rate, I am convinced that divorce mediation should be the solution of first resort for 85% of the couples who are contemplating divorce.
2. Learn the divorce laws in your state. It is easier to deal with a situation when basic information is already known. In the 8 community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) property division is pretty clear. What ever was totally owned prior to marriage or received by gift or inheritance is separate property that goes to the spouse who owns it. If it was partially paid for using wages or income earned during the marriage, the “community” gains an interest in it that can be calculated. Division of property in community property states is one of the easiest issues to deal with because it is so clear cut. But what about the other 42 states? These states use an equitable distribution system to divide marital property. Each state has its own rules that can be ascertained prior to starting the divorce process. So there is some uncertainty in non community property states but an experienced lawyer/mediator generally knows what the court will do in most situations and can be a valuable guide to couples who are unfamiliar with the laws. All states have some kind of guideline child and or spousal support rules. Paralegals in your area will have the state program or otherwise be able to help you determine what support should be. There is nothing to fight about. Would you think of arguing about whether or not 2+2+4? It is a math problem that does not require a court fight unless someone is hiding income.
3. Acknowledge that PARENTS are the best people to decide child issues! Custody is the issue that needs to be settled outside of court! The bad feelings that come from litigating child issue will ruin any ability to co-parent later. A judge might look at the papers you file for a few minutes but often they are looking at your papers while the attorneys are arguing. You only get a limited amount of court time and then a decision will be made by a stranger who does not know or care about you or your children. It makes NO SENSE to put yourself at the mercy of lawyers and judges who will tell you how to raise your children. A far better approach is to use the services of a child therapist or another parent who has successfully raised their own children. Go to a therapist or trusted friend and let them act as a judge. They have more insight into the two of you than a judge would. Why make strangers rich by hiring lawyers? It is to their benefit to keep the two of you fighting.
4. Find out about the alternative to divorce court: mediation. In litigated divorce cases, child custody and visitation issues can be the most contentious and emotional. As described above, you can and should deal with child issues outside of court. If the parents can agree to a custody arrangement, which they eventually do in 90% of custody cases, they can avoid court altogether. Why should a couple wait until they are on the courthouse steps to make a deal? Only 10% of custody cases are litigated. The courts typically apply a “best interest of the child” standard in determining who should get primary custody. You know the parents themselves are in the best position to decide how their children should be raised. When a couple works together in mediation they are in control of the final outcome, not lawyers or judges. When the couple has an intention to effectively co-parent by always keeping the best interest of the child foremost in their mind, they will produce a much more satisfying outcome than if a solution is imposed upon them from above. Child custody issues are the most inappropriate issues to be decided within an adversarial system. The win/lose game that is played in court always results in tension between the parents. Not only will this tension negatively affect the health and happiness of the parents but the children will be caught in the middle of a battle, ducking verbal and emotional bullets as they fly over their heads. The adversarial system does not protect the co-parenting relationship of parents and should be avoided if at all possible. An emotionally vulnerable client in the hands of a “zealous advocate” who is more concerned with enriching themselves than in helping their client is a dangerous combination. Working with an attorney/mediator protects the couple by having an expert giving them legal information in a way that does not encourage them to fight.
5. How to find the mediator who is right for you? The phone book is full of divorce attorneys. How do you know who to trust? When looking for a mediator it is best to avoid the wolves in sheep’s clothing. You do not want an attorney who primarily practices adversarial law. While it is best to use a mediator who is an experienced lawyer so they can give accurate legal information to the couple, you want to use someone who focuses primarily or better yet, exclusively on mediation instead of litigation. Ask the mediator how many mediations they have done (the more the better), what their success rate is, how long it takes and the cost. Then compare the answers to see who the two of you like best.
In conclusion, the primary thing to keep in mind is that avoiding divorce attorneys and court should be your #1 priority if you want to protect your health, spirit, co-parenting relationship and pocketbook. The divorce process is an emotional and personal situation, not a legal situation. Because so many people have already been divorced, there are no more mysteries. All the legal questions have already been answered so an experienced divorce lawyer who is acting as the mediator, will have a good idea of what the court would order. There is no reason to fight. But mediation is not for everyone. Approximately 15% of the population are high conflict personality types. You have met these people before. They have problems with all the people in their life, at work, school, home, family, etc. They thrive on drama and create a lot of problems for themselves and others. Ask your friends if that sounds like you or your spouse. If so, consider if that really works in your life. With a powerful intention you can create more peace by changing your outlook and actions. You may even save your marriage. If both of you agree that it is best to move on as single people and are rational enough to work together instead of making divorce lawyers rich, then take a good look at mediation. You only get one chance to create a peaceful divorce. Your children will thank you for not putting them in the middle of a nasty court fight.