Publications for
Individuals Going Through Divorce

 

A Kinder Gentler Way to Divorce

By: Bonnie M.S. Reiss

The words "I want a divorce" are among the most devastating ever uttered. Hearing them can make you feel as though your world has spun off its axis. They can destroy your self esteem. You may feel as though you have failed in the most important relationship in your life. You worry about whether you will be kept from your children, whether you will be able to continue your lifestyle and even whether you will have the money to pay your bills. People treat you differently. The friends with whom you socialized as couples stop calling. Your children pursue your less available spouse. You are required to learn a new set of tasks, whether it is fixing the pilot light on the stove or styling your daughter's hair. You live in a constant state of anxiety. And, of course, there's the anger.

The interaction between you and your spouse is reduced to a "dance" of action and re-action. You tell your spouse that the children are unavailable to stay out late at a hockey game because they have a test the next day. Your spouse reduces the funds available to run the household. At this time when everything in your life is uncertain and you feel constantly judged your life becomes governed by the court system, where it can take years to have the decisions made that allow you to go on with your life. You hire a lawyer to advocate for you, as does your spouse. You go to court to see your children or seek money to pay your expenses and it can take months for a judge to decide. The attorney seeking support will point out that the income on your tax return is understated because many expenses are paid by the family business and not taxed. There may be talk about the IRS reviewing the books or a judge suspecting unreported income and, as required by law, sending the case to the U.S. Attorney. Information requested by the attorneys is delayed or withheld. Aggressive letters threatening "to seek sanctions" are written by the attorneys. Parents warring over time with children will criticize the other's parenting and sometimes imply physical or sexual abuse. You both file motions with the court. The lawyers file papers with the court using accusatory language. In court papers you and your spouse refer to one another as "a liar." Exhibits are attached. It costs thousands of dollars. A judge who never met you, and lives a different lifestyle than you do, scrutinizes your expenses or your parenting style (as described by your angry spouse) and decide what he or she thinks is reasonable. Someone wins and someone loses. Anger and mistrust are ramped up.

Both spouses assume that the other is hiding something causing the lawyers to request more information, send subpoenas to employers, banks and credit providers. You must pay to have the documents photocopied. Counsel fees go up. You and your attorney are required to attend mandatory court events, where you may wait for hours for a ten minute conference. You are paying your lawyer and you lose time from work. Your children see the animosity and feeling that their lives are out of control, begin to act out. You begin to pay for counseling.  Whatever savings you have managed to accumulate begin to dwindle. 

This scenario is common in cases in the court system -- also called the "adversarial system." The insults of the marriage are multiplied during the divorce process. By the time anyone begins to talk about a settlement you and your spouse are so consumed by distrust and anger that it is difficult to switch gears.

You may feel that they have spent so much on litigation that you can only recoup by going to trial.  You pay your attorney to be in court for a whole days even though you may only get an hour or so of attention from a judge who has responsibilities other than your case.  You will never recoup in a trial what you have spent on litigation. The process is costly, not only financially, but emotionally. 

While there are some matrimonial disputes that must be resolved in the courts, these are few and far between.  Most divorce cases settle eventually, but only after unnecessary collateral damage to you, your spouse and your children. There have been instances when children have committed suicide because they cannot live with parents at war.

Increasingly, people are turning alternatives to litigation to settle their differences.  In divorce cases, there are three alternatives:  Mediation, Arbitration and Collaborative Divorce.  There are pros and cons to each.  Understanding the differences can help you decide which, if any, is right for you.

In mediation, there is a third party, typically a lawyer, accountant or mental health professional, who helps you and your spouse reach an agreement on all disputed issues.  It is relatively informal.  Usually, each spouse has an attorney, but not always.  You will sign an Agreement to Mediate setting forth the conditions under which the mediation will occur and the fee arrangement with the mediator.  Often, you pay for the mediator’s time at each session.  While sometimes retainers are required, they tend to be substantially smaller than a retainer in a litigated matter.  You agree that if the mediation is not successful the mediator will not testify in court on behalf of either party. 

If there is a business to be valued, you address the question of whether you will have a joint or individual expert and what due diligence is necessary in an early meeting. You attempt to come to agreement on a reasonable budget and can draw a distinction between fixed expenses and discretionary expenses. If you and your spouse disagree over temporary support or time with the children it can be addressed in a meeting or even a phone call, rather than a motion in court. You have your answer soon and save thousands of dollars. Many times people enter mediation viewing custody as "disputed" but with the help of a mediator can arrive at a parenting schedule that both parents can live with and serves the needs of the children. Schedules can be established on an experimental basis with the understanding that if the children are having difficulty you will return to the table. This does not happen in court where a contested custody case can cost hundreds of thousands of dollars, create such animosity between parents that they can never interact civilly again and leave everyone in the family emotionally devastated.

When parties agree to resolve their differences through mediation, typically there will be several meetings, and you and your spouse will reach agreements on individual issues, with the understanding that there is no settlement until everything is agreed. If you and your spouse wish to save money you may meet with the mediator without your attorneys and meet with your attorneys in between to make sure you are on the right track.

Mediated agreements sometimes contain provisions that judges do not have the authority to order. For example, alimony is tax deductible to the payor and taxable to the recipient. Where the paying party may not receive a real benefit from an alimony tax deduction a mediated agreement might provide for non-taxable alimony. Alternatively, the parties may diverge from the mandatory minimum payments required in the child support guidelines in favor of more alimony, a greater equitable distribution payment or the right of one spouse to stay in the marital home. Upon settling all issues the mediator drafts a document called a Memorandum of Understanding. You then review it with your attorney and one of the attorneys prepares a formal Property Settlement Agreement, after which you enter the court system for the purpose of obtaining your divorce. This can be done within weeks after an agreement is reached.

The benefits of resolving your differences in mediation are many. First, it is likely far less expensive than litigating in the courts. This gives both you and your spouse more of the assets you have acquired to start a new life and to educate your children. It gives you and your spouse more control over the outcome than leaving these important decisions to a third party. Perhaps most important it sends an excellent message to your children which is that you and your spouse, despite your differences, can negotiate and enter into agreements that are in their best interests. It allows you to be the role model that your children need you to be.

The court system provides mandatory economic mediation. This, however, does not occur until many months after the case has been in, and subject to, the requirements and pitfalls of the court system. The key to mediation is to begin early, before your case enters the court system. If you do, the case is not subject to court calendars, and you can address your disputes at your own pace which may be slower or faster than the case would progress in court. Early entry into mediation allows you to address disputes in a non-adversarial setting where it is less likely that you will feel compelled to take extreme positions. It is not necessary to be "friends" to enter mediation. You may still feel anger and hurt. However, the mediator is there to act as a referee, to hear your concerns and help you keep your focus on what needs to be done to resolve the case and help you move forward with your life.

Are there risks to mediation? Of course. Most mediators will not work with a couple where there is a history of domestic violence. Also, the mediator's task is not to make a fair agreement but to help you and your spouse make an agreement that includes compromises that you can live with. The power dynamics of the marriage can follow you into the mediation room and you may enter into an agreement that you later find to be unfair or intolerable. However, most good mediators will sense this and urge you to retain an attorney to advise you if you do not already have one. If the animosity is extreme or it is clear to the mediator that one or both spouses are intent on withholding information or misrepresenting, mediation is unlikely to be unsuccessful and a good mediator will terminate the process early. The court system is then available for you and you have likely gathered valuable information during the mediation.

While many people hold themselves out as mediators, not all have training or experience. Some attempt to impose a result on the parties rather than assist the parties in reaching their own agreement. The Supreme Court of New Jersey approves mediators who have had requisite training and submitted credentials that meet the Court's requirements. If you are considering a mediator, you should ask about credentials and experience. In selecting a mediator you need to consider what issues will be the most difficult to resolve. It may be unwise to select a mental health professional where your finances are complex. Similarly, an accountant is likely to be unfamiliar with issues in child development and the effects of divorce on children. Family lawyers, experienced and trained in mediation, are knowledgeable in both of these areas and know when to access other professionals to participate in the mediation process.

Another alternative to the court system is arbitration. You and your spouse agree on an arbitrator who hears testimony, reviews documents submitted as exhibits and makes decisions on the issues in dispute, much like a judge would do. Unlike a judge, an arbitrator is paid by the parties. One advantage of arbitration is that you may select as the arbitrator a family law practitioner who has been practicing family law by choice for many years, may have written articles or handled other cases with issues important in your case and has taught family law to judges, as opposed to a judge who may never have practiced matrimonial law and has only recently been assigned to the Family Court. As in mediation you are not subject to the scheduling constraints of the courts. Arbitration is a less formal process than litigation in that it occurs in a lawyer's office and can be scheduled so that less time from work is missed. When you are scheduled for a day of arbitration you get a full day of the arbitrator's attention. Rules governing the courts about the form in which evidence is submitted may be relaxed, making the process less expensive. Arbitration, like mediation, provides the parties with confidentiality since, unlike in court, documents and testimony are not open to the public viewing.

You will have to decide whether the arbitration is binding or non-binding. If it is non-binding, it is little more than a suggestion. Most people who choose arbitration agree that it will be binding. Once you agree to binding arbitration you cannot withdraw and choose to litigate unless you can prove to a judge that there was fraud or corruption in the process. The arbitration award is less subject to attack on appeal than a court's decision would be since it is binding absent fraud or corruption. Arbitration is a good alternative for people who do not believe they can reach an agreement but need a family law expert to make the decision and value confidentiality and flexibility in scheduling.

Collaborative Divorce is the newest selection on the alternate dispute menu. It differs from mediation in that the goal of mediation is to reach a compromise between two adverse positions, whereas the Collaborative process views divorce as presenting a series of problems to be solved. The intent of the participants is to arrive at the best solutions for the family and minimize the conflict between the husband and wife. The parties focus on satisfying legitimate needs rather than on what each "can get" from the process.

Sometimes there is a facilitator to assist the parties and their attorneys in framing the issues and moving forward.  Often, the two attorneys who are trained in Collaborative Divorce manage the process. Where the spouses have difficulty communicating, they may employ a “divorce coach” to assist them. If they have disagreements over their children, they will hire a mental health professional trained in Collaborative Divorce to help them create a parenting plan that best serves their children. They may also jointly retain other professionals such as a financial planner to present options for maximizing their income, or a mortgage broker to assist in a re-finance and reduce monthly payments. The parties develop budgets together and often enter into agreements which have built in modifications to address temporary or transitional situations, such as where one spouse is attempting to re-enter the job market and may need to become acclimated. The professionals work as a team with the parties. 

Often, agreements in Collaborative Divorce cases contain provisions that a judge could not order but meet the needs of the parties. Instead of valuing a business and one spouse paying the other a portion of the current value, they may agree for the non-employed spouse to have a continuing interest to be paid at a later date or when the business is sold.  In order for the Collaborative Divorce process to work, the parties must be candid with one another. It is as far from the adversarial system as divorce can get and it is critical that both spouses’ attorneys be trained in the Collaborative Law.

As with mediation, if you perceive that the process is failing, you are free to withdraw and go to court. However, a unique feature of this process is that both Collaborative Law attorneys agree that, if the process fails, neither will represent their client in court.  This both serves as an incentive to stick with the process and causes inconvenience and the additional cost of having another attorney learn about the case if you are convinced that the collaborative framework is not working for you.  However, there are many cases in the court system where litigants change attorney’s mid-stream. 

Divorce is difficult, wrought with emotion and expensive. If you choose the court system, you are turning control of your life over to a bureaucratic process and a judge who works hard, but is generally overworked. By opting for mediation, Collaborative Divorce or arbitration it is possible to have more control over the outcome, keep your disputes and financial circumstances confidential and minimize conflict. Most important, the message you send to your children is that their parents, despite obvious differences, can still make decisions together that serve their best interests.

Mrs. Reiss is a partner at Paras, Apy & Reiss, P.C. in Red Bank, New Jersey.  She has practiced family law for more than 30 years handling complex financial and custody cases.  She is an approved mediator by the Supreme Court of New Jersey and is trained in Collaborative Divorce.  She is the author of Divorce: A Guide to the Process which can be downloaded here.