If you’ve never been through it before, count yourself lucky. If you have, then you know what I’m talking about. If you’re just starting to think about it, then you should know this: getting a divorce represents a massive change and disruption to the status quo. You’ll likely contend with the day-to-day grief that gnaws (or pounds) at your heart while you keep working, managing others, shopping, maintaining the house, and caring for children, elderly parents, bosses, friends, and animals. With so much on your plate, you may think that you don’t have time to focus on your own physical, mental, and emotional well-being. That would be a mistake.
It’s common to feel as if your life is falling apart and you simply don’t have the energy to create a new life paradigm — or even a new divorce paradigm. It may be easier to just feel mad, point the blame at your spouse for ruining your life, and turn it all over to a divorce lawyer, regardless of whatever adversity may result. While your feelings may be overwhelming at times, you still have rational choices to make about your future financial security and relationships with the people you love.
It’s important to deal with the emotional aspects of your divorce right off the bat. Investing in a good therapist will pay huge happiness dividends down the road. Keep your therapist throughout your divorce process. You’ll need that outlet and it’s good to know that you always have a professional who is able to handle your intense emotions, listen without reacting, and give you the dignity of working through your feelings. But remember, feelings aren’t facts.
Once you’ve made the decision to divorce, ask yourself: Do I want an amicable divorce? Do I think my spouse would want an amicable divorce? Am I willing to ask for a different type of divorce experience? Is having a future, functional relationship with my spouse important?
If you’re thinking: “Yeah, I wish we could have an amicable divorce,” you need to research Collaborative Divorce. Before you do anything else (including telling your spouse that you want to divorce), consider the fact that if you call a divorce lawyer trained in the dark art of adversarial warfare, the risk is very real that things will go from bad to worse in a hurry. It also will cost a small fortune in attorney’s fees, and the interests of your children and other important family relationships will likely get lost amid the turmoil. This is where I recommend that your second call (after scheduling your therapist) is to a Collaborative Divorce lawyer who will clearly explain your options.
You now have choices. This doesn’t have to be your parent’s ugly, bitter divorce.
Here are four ways to get a divorce:
Do It Yourself (a.k.a Kitchen Table Divorce)
This is a great option for those with very little to argue about. The best candidates have:
- A similar outlook
- No children, or no disagreements about them
- A Prenuptial Agreement, or not many assets to divide
- A short marriage, where alimony isn’t an issue or a longer one where the value of non-monetary contributions to the marriage are honored and paid for by agreement, or in accordance with a guideline
- Time to educate themselves on the legal aspects of divorce
- Easy access to the state’s judicial website to download forms
- Confidence in equal bargaining power to negotiate
- Little to no interest or trust in lawyers
In this model, you’ll fill out the forms and send in the requisite filing fees to the court, and — voila! You just divorced yourselves. Well done. Not many people can do that.
This is an out-of-court dispute resolution model where you find a neutral conflict management professional (a mediator) to facilitate a difficult conversation. The best candidates have:
- Equal access to all the data
- Relatively equal bargaining positions
- An ability to self-advocate
- Interest in a confidential process
- Interest in a neutral person managing difficult conversations
- An ability to represent themselves or maybe consult an attorney
- Are looking for an empowering, modest-cost, non-adversarial option
Mediation without lawyers can be an economical and empowering process. Done correctly, it’s an invitation to sit down with your spouse in a safe and confidential setting to have, arguably, the most difficult conversation of your adult life. Lawyers can be helpful to prepare for a mediation, as well as to review agreements after the fact before you sign any legal documents. Most mediators will encourage you to seek independent legal counsel.
Adversarial Model: Go to court, counsel optional
Some cases should go to court. It’s common knowledge roughly 98 percent of cases settle before the dramatic courtroom showdown as seen on TV. Cases that end up in front of a judge often involve active domestic violence, child abuse, or imminent threats to financial support. The best candidates for an adversarial process involve:
- Active and imminent domestic violence
- Imminent loss of access to financial resources
- Child abuse, kidnapping, or alienated parent
- Inability to discuss settlement options
- A desire to “be heard” by a judge
- A belief that the judge is going to side with you
Family court is not a kind or gentle court system. It’s premised on the civil, adversarial model that presumes two lawyers are representing their clients in a way that a neutral judge will be able to discern truth from fiction, and facts from folly. It’s designed to be adversarial.
Collaborative Divorce: The new paradigm for amicable divorces
This model offers a client-centered process that’s designed to meet the needs of each spouse and the family. This is accomplished using an interdisciplinary legal, mental health, and financial team. The lawyers ensure that any agreements meet the requirements for a divorce. A neutral mental health professional ensures that the emotional needs of the clients are met during the process. The neutral financial professional ensures that everyone understands the value of the assets, liabilities, incomes, and cash flow to support two families in two homes. It offers the hope of emerging from divorce healthy and undamaged, as opposed to bitter and resentful. The best candidates:
- Are emotionally intelligent
- Want an amicable divorce
- Have the ability and disposition to talk and empathize
- Are willing to share financial information
- Are willing to take some responsibility for the end of the marriage
This isn’t rocket science. It’s a choice divorcing people can make for themselves. Collaborative divorce offers a couple the privacy, space, and dignity to move through this major life transition at a pace that makes sense to them, without shame and blame. The lawyers are in a supportive role, not a combative, adversarial one. The mental health coach is normalizing intense emotions, not providing therapy. And the financial advisor gathers, organizes, and analyzes the best financial options so that the couple can untangle their marriage and move confidently into their futures with the knowledge that they managed their divorce in the most humane way possible.
Nanci A. Smith, Esq., is an attorney licensed to practice in Vermont and New York. She is the chair of the Collaborative Divorce section of the Vermont Bar Association, a leader in her collaborative divorce practice group, and a member of the International Academy of Collaborative Professionals. She frequently writes and talks about divorce, family law, ethics, and collaborative divorce practices. Smith is the author of Untangling Your Marriage: A Guide to Collaborative Divorce (Rowman & Littlefield Publishers, Oct 11, 2022). Learn more at nancismithlaw.com.
© YFS Magazine. All Rights Reserved. Copying prohibited. All material is protected by U.S. and international copyright laws. Unauthorized reproduction or distribution of this material is prohibited. Sharing of this material under Attribution-NonCommercial-NoDerivatives 4.0 International terms, listed here, is permitted.