By the time couples are sitting across from me for their Divorce Mediation there is a pretty strong assumption that a final decision has been made by one or both spouses that their marriage is over and that the divorce will be moving forward. I am a very strong advocate that if a couple is divorcing they are best served by tackling the issues through mediation which has the couple working together to reasonably sort out their divorce out of Court. With that said, I want to be sure the work that I am doing with the couple to divorce in a healthy way is necessary and that they have explored all possibilities to preserve their marriage and resolve the issues in their relationship to avoid divorce if possible. This week’s blog focuses on addressing mixed signals I have witnessed in my work giving rise to the question “Is the marriage really over?” and strategies to help couples address these questions as they arise.
Are you Sure your Marriage is not fixable? Over the years I have had a number of couples in front of me preparing to move forward with a divorce that on first glance seem like they genuinely continue to care about one another, communicate well, are generous to one another, and are thoughtful and loving to each other. I don’t want couples spending money on my services when they are not needed. I also understand that I am not privy to whatever has led the couple to be sitting in my office and I know that usually couples have not come to me to weigh in on the viability of their relationship. Despite this, I have my ears open as we work together to identify if there are any signs that the couple might benefit from slowing down on the divorce process and possibly getting assistance through couples counseling or other support focused on fixing issues in the marriage.
I have had two mediations over the years where the couple filed for divorce, resolved all their issues, and we prepared the final paperwork and submitted it to the Court for processing. In each of these cases the Judge signed the paperwork and given California’s six month cooling off period, the paperwork was processed and the couple was just waiting for the passage of time at the end of which they would become single people. Prior to the date arriving each of these couples decided they wanted to reconcile and I assisted with preparing paperwork for them to appear before the Judge and pull back the paperwork that had already been processed. In each case the Judge granted the request and the couple remained married. I certainly want to help couples avoid going through all the work of the divorce and paying the fees associated with it when at the end of the day they will choose to remain married. We as divorce professionals should be open to guiding our clients to consider options other than divorce if such an option presents itself.
Marriage Takes Two. As mentioned, by the time couples get to me, the train has often already left the station. Quite commonly the two spouses in front of me are at two different places related to their decision to divorce. One spouse might be done with the marriage and ready to move forward while the other spouse is intent on fixing the marriage and avoiding divorce. This dynamic invites a conversation up front. Is there anything that can be done to move the spouse that is done to reconsider? If not, it is an opportunity to help the other spouse hear that there is no longer an option to fix the marriage. I have previously written on the pace of divorce mediation, and in situations where couples are in these different places emotionally, it is important to find a pace that allows one spouse to move toward completion while allowing the other spouse time to heal and get to a place where they are ready to emotionally tackle the work at hand. If the first spouse seeks to move too fast the couple may fall out of mediation and litigation may become inevitable. The same is true if the other spouse frustrates any progress. Sometimes having this conversation and coming to an agreement about a pace that is somewhere in between keeps the couple in a place where they can continue to amicably address the matter without involving the Court.
What About Legal Separation? Some couples inquire about the possibility of proceeding with a Legal Separation when they want to keep open the possibility of reconciling. This arises from a misunderstanding of what Legal Separation is. A Legal Separation is very similar to a Dissolution of Marriage in that the issues of custody, support and property division all occur in the Legal Separation just as in a Divorce. Legal Separation may allow one spouse to remain on the health insurance coverage through the employment of the other spouse, but nearly all rights afforded a married couple are severed. Community property stops and each party receives any assets they thereafter accumulate and are responsible for their own debts. If the couple reconciles they are not restored to that place they were in before the Legal Separation. Couples that are unsure are better served holding off on filing anything with the Court until they explore reconciliation. They can agree to a trial separation where they reach agreement on how they will manage their finances and share children in the meanwhile, but that can be handled with an agreement that does not include a formal filing with the Court.
Other Options: Postnuptial Agreements. Sometimes couples reaching agreements during their marriage regarding the management of their finances or division of their assets, can help them overcome nagging disagreements in their relationship. To help overcome these issues, couples can agree to terms related to their financial obligations and property rights while remaining married. These agreements are referred to as post-nuptial agreements and can alter the married rights of couples. If you are going to consider this option it is very important to understand that married couples have a fiduciary responsibility to one another to treat each other with good faith and fair dealing. Agreements during marriage that favor one spouse over the other are scrutinized in the event of divorce and the favored spouse can be accused of violating their obligation to treat the other spouse fairly. It is important to get legal advice if you want to explore this option and that both spouses have the benefit of legal counsel related to such agreements.
Explore Resources. I am the first to admit to my clients that I went to law school and aside from my experience of working in the trenches for 30 years with my divorcing clients, I do not have formal therapeutic training. I have focused on building a network of professionals that do such work and we as divorce professionals should keep our radar out for couples who might benefit from such professional guidance. While understanding that our clients are coming to us to get divorced, we should hold onto that small possibility that there are other ways we can help our clients than pushing their divorce forward before its time.