Parties enter into marriage with high expectations and hopes on building a common future together, one that includes happiness, peace, economic security and the possibly children together with the children are of the marriage or a blending of children from prior relationships.
Tragically, we live in a society in which “forever” often means something less, as life changes, people change or develop in different directions or fail to meet their partner’s reasonable (or unrealistic) expectations. This not infrequently leads to divorce.
Once one or both of the parties decides to terminate the marriage, the parties must choose how they will proceed with dissolution of the marital bonds. Each case is unique. Some cases are burdened with the raw emotions that flow from actual or perceived betrayal; others, from physical or verbal abuse; and others from the disappointment of a failed relationship. Where children are involved, the issues and the emotions are more complicated, and the parties are bound together for the lifetime of their children, as the parties move from child rearing to major life cycle events such as graduations, weddings and grandchildren.
At the threshold of embarking on the process of dissolving the marriage, the parties make critical decisions that will determine the type of divorce they will experience. These decisions also impact the cost of the divorce and the emotional damage that will be left in the wake of this process.
The traditional approach. Traditionally, parties obtain a divorce through the litigation process.
The litigation process is an adversarial process. A complaint is filed, the parties pursue discovery to obtain information needed for the preparation of their respective cases and, if the case doesn’t settle, it is tried to a judge. The judge, in turn, resolves the case for the parties.
It is not uncommon for fully litigated cases that include child custody issues to run in excess of $30,000 per side. The financial cost can run materially higher if a business needs to be valued, if money needs to be traced or a custody evaluation needs to be performed by a psychologist. Not uncommonly, each party retains his/her own experts.
The emotional cost can be even higher as two people, who once loved each other, now possessed with a destructive raw emotion, do battle through surrogates until they themselves must take the stand in the crucible of a trial held in open court. The judge who imposes a decision often feels that he or she never learns as much as the parties know about their true circumstances and in candid moments, many judges readily admit that it is better for parties to resolve these matters on their own rather than have a person in a black robe impose a decision on such important matters for them.
Mediation. A second approach that many parties are turning to is mediation. Mediation is an approach where the parties (sometimes accompanied by attorneys and sometimes on their own) meet with a third party neutral known as a mediator. The mediator is typically an experienced attorney or retired judge who has received additional training to serve parties in this capacity.
As third party neutrals, mediators seek to facilitate discussions between the parties to assist them in resolving their issues. A mediator may not provide the parties with legal advice; however, he or she can provide general information and often are successful in helping parties to reach agreement. Usually a mediator will refer each party to an attorney who represents only that party’s interest to review the agreement before the parties sign the agreement.
Benefits derived from a mediated settlement include sparing the parties the expense and pain of trial. Most important, it is a decision reached by the parties themselves rather than one imposed upon them by a court. As such, the parties are more likely to honor its terms and will be more likely to experience a tolerable outlook that meets their concerns and facilitates future dealings between the parties, particularly if the parties have children in common.
Collaborative Law. A third option available to parties seeking to resolve their differences is known as collaborative law. The collaborative law process is a relatively new option. Parties who participate in the collaborative law process each select an attorney who has been trained in the collaborative process. The parties identify their respective goals and concerns, provide full disclosure as to finances, and work together in an attempt to resolve their issues even as they are preparing for their separate futures. Two people who once cared deeply for each other but who have decided to pursue separate life paths work together to try to achieve a fair and harmonious resolution to their issues. Additional professionals who have been trained in the collaborative method are available to assist the parties as their try to create their own resolution to their issues. These include, but are not limited to, divorce counselors, child counselors, accountants, and business and real estate appraisers. Not infrequently, parties jointly retain such experts, avoiding the duplication of cost that would occur if they retained such experts separately. Information on the collaborative law process is provided by the International Academy of Collaborative Practice at http://www.collaborativepractice.com.
At The Myerson Law Firm, we can assist you in each of these approaches, as Jay is a trained mediator, former chairman of the Fairfax County Conciliation Program, a long-standing neutral case evaluator and trained in collaborative law and a member of the Collaborative Professionals of Northern Virginia. More information on the Collaborative Professionals of Northern Virginia can be found at http://www.cpnova.com.
by Jay B. Myerson