Every state has its own laws for obtaining a divorce, or dissolution of
marriage as it is called in some states. Like many other types of civil
process, the legal process is somewhat similar in all states. The first
step, in any divorce, is that one spouse or both spouses make a decision
to initiate a termination of their marriage. Arriving at this decision
is different for each individual. Mark Baer has written extensively about
processes available for handling family law matters in California and
things to consider before filing for divorce. There is no doubt that the break-up of a romantic relationship is wrought
with emotion, but it is a grave mistake to make emotional decisions that
you will later regret.
The average "financial cost" of a divorce in the United States is estimated
to be $20,000.00. While some divorces only cost a few hundred dollars,
others can cost millions of dollars. "Each case has its own 'price point.'
The amount of fees and other expenses that may be required to resolve
a case depends on at least four variables: (1) Level of conflict, (2)
Complexity of issues, (3) Sophistication of clients, and (4) Choice of
counsel." This quote is from an article by Nancy Chausow Shafer titled
Dispute Resolution Processes in Limited Finance Cases - Stepping up to
Client-Centered Decision Making that was published in the Fall 2013 edition of ABA Section of Family Law
- Family Advocate.
The reason I specifically mentioned the "financial cost" is that it fails
to take into consideration the emotional costs to the parties involved,
their children and the family as a whole. You must always remember that
money comes and goes, but family is forever.
Mr. Baer advocates mediation or collaborative law rather than litigation
to those involved in divorce, paternity or other family law-related matters.
Litigation attorneys tend to resolve matters in an adversarial manner,
regardless of the field of law. Cases involving family matters should
not be handled in the same way that attorneys would handle a criminal
case, a medical malpractice case or a toxic tort case. Litigation tends
to exacerbate the level of conflict, which tends to increase the amount
of time and expense required to resolve the matter. However, mediation
can decrease the conflict while resolving legal and other issues, simultaneously
addressing emotions and feelings.
Using litigation in family law is like involving ground troops, as a first
resort, when countries have international issues; similarly, using judges
and arbitrators would be like choosing the nuclear option. When the U.S.
is having a dispute with another country, it initially attempts to resolve
the issue through diplomatic efforts. If diplomacy doesn't work, it might
try economic sanctions of varying levels. If that doesn't work, it may
use drones to drop bombs. If that doesn't work, it may involve ground
troops. The final option, if absolutely necessary, would be to drop a
nuclear bomb, something it has not done since 1945. But if our country
is not getting along with Iran, Russia, or any other country, we don't
start resolving the conflict with ground troops or nuclear weapons; we
try diplomacy in an effort to resolve it.
As with international disputes, family law matters should start with conflict
resolution through diplomatic efforts by way of mediation. The best mediators
are those who are well versed in evaluative, facilitative and transformative
mediation and can seamlessly move from one approach to the next as the
need arises. Mr. Baer explains the different types of mediation, available,
in his well-received article for the Huffington Post entitled
"How To Select The Best Mediator Is a Must Read for Everyone."
What makes a really exceptional mediator is the ability to capture the
essence of a conflict and move people to a place of empathy and compassion,
which is the role of facilitative mediators. Litigators are warriors so
these skills are inconsistent with their role. In fact, it is unlikely
that they even have such skills.
Furthermore, children, step-children, grandchildren, and others frequently
suffer the collateral damage of their parents' decision to handle their
differences in an adversarial manner. These individuals, and potentially
their offspring, will carry forth the fall-out from the adversarial way
their parents' relationship ends. However, if mediation or collaborative
law is used right from the start, this destruction can be averted.
Unfortunately, people excel at not only talking themselves out of handling
their matter in a constructive manner, but also tend to retain aggressive
attorneys. However, as set forth by Mr. Baer in his article titled "
When Divorcing, Don't Hire a Pit Bull Attorney - Aggressiveness won't help
you in court" that was published in Psychology Today, that is a mistake that people
tend to later regret. As Mr. Baer likes to remind people, "outcomes are
determined by the way in which the 'game' is designed."
For the reasons stated by Mark Baer is his article titled
"How To Select The Best Mediator Is a Must Read for Everyone," it is essential for people involved in family law disputes to select the
mediator before involving attorneys. It is also advisable that you select
a mediator carefully.
Family law is extremely complex because it involves the interplay between
the law, emotions, family dynamics, finance, and taxation, among other
things. Successfully resolving those disputes requires skills beyond those
traditionally taught in law schools. The same is true of "uncontested
divorces." While most people believe that an uncontested divorce does
not require the help of a seasoned professional, they are highly mistaken.
Always remember, competent people making informed decisions can agree
on anything they want, that is not illegal or otherwise in violation of
public policy. Without professional assistance, how can you be certain
that you are making informed decisions that are not illegal or in violation
of public policy?
The typical legal issues involved in a divorce include division of property
and debt, parenting plans and timeshare schedules regarding children,
spousal support, child support, contributions toward attorney's fees and
costs, and possibly domestic violence restraining orders. If the couple
entered into either a prenuptial or post-nuptial agreement, those documents
may impact some of these issues and must therefore be analyzed. With the
exception of domestic violence restraining orders, the issues that actually
led to the breakdown of the marriage are legally irrelevant, which Mr.
Baer believes tends to exacerbate the conflict. He has discussed this
reality in many of his articles, including "
The Perfect Storm: Lawyer Limitations and the Adversarial Model in Family Law" and "
When the Law Is Involved, Do Feelings and Notions of Fairness Matter?"