Most couples faced with divorce find it to be an extremely daunting task. During a time of emotional crisis and strained levels of communication between spouses, you have to sort out such important issues as sharing and meeting the needs of the children, navigating management of ongoing finances, and fairly dividing up accumulated assets and debts. That is hardly a fun or simple proposition. I am not here to claim that divorce is a simple task but in today’s blog I do seek to take some of the complexity out of it by breaking it down into simple manageable steps. These steps are (1) managing your emotions so they do not get in the way of sound and effective decision making, (2) getting educated on the law and the issues, (3) getting all the information and documentation you need to make sound decisions, (4) exploring available options and settling, and (5) formalizing it. I am primarily going to address these steps as they relate to mediation, but these steps also apply when you hire attorneys and litigate your divorce through the courts.
Managing the Emotions. There is a lot going on emotionally when couples decide their marriage is over. Anger, blame, anxiety, sadness, fear, mistrust, hatred, to name just a few. Whatever the circumstances that have led to the breakdown in the marriage, most of these emotions will not serve you to navigate the best path forward through your divorce. With that said, our emotions are there and we need to accept that, acknowledge them, and work through them so that we are able to approach the business of the divorce with a clear head fully able to understand the issues to be addressed and with full ability to actively participate in the process.
In mediation this may mean slowing down a little bit before moving forward to assure that both spouses are in a space that the emotions are not getting in the way. Sometimes a spouse needs to first get past the anger before they are able to consider choosing a path such as mediation that involves working with the spouse who has just harmed them or violated their trust. When litigating, it is likewise important to manage these emotions because the fight can become very expensive and if it is driven by a desire for retribution or revenge, those feelings might very well stand in the way of resolution. The end result may very well not be the retribution you sought, and you may be very disappointed with the final outcome. Getting a handle on the myriad of emotions is likely the hardest task to manage as we explore making divorce a little easier. The more successful you and your spouse are with this first one, the easier the rest of it becomes.
Education Education can look a little bit different depending on whether you are hiring an attorney or if you are mediating with the assistance of a neutral professional working with you and your spouse. When we litigate, we often rely on the attorney to be the educated one. They will be there to guide our decisions so we have a little less of a responsibility to understand all the law, etc. While there is some truth to this, I assert that whether or not you have an attorney, it is invaluable for you to get educated on your options, and it is essential that you understand the law and the issues so that you are empowered to be an active participant in the decision making.
Insist that your attorney educate you as part of the process. In mediation, it is the task of the mediator to assure that both spouses are educated and have a clear understanding of the law and the issues before they are tasked with making the decisions. Get educated. Seek legal advice if needed. Deliver yourself to a place where you are comfortable with the information so that you can make knowing decisions whether you have an attorney advocating for you, or if you are self represented. I have prepared an E-book that begins with this education and plan to have a workbook published by the end of the year that helps couples get educated whichever route they take with their divorce.
Disclosure. California requires a complete disclosure in every divorce or legal separation before the Court will grant a final decree. It is required. You and your spouse are required to provide and are entitled to receive this information which is intended to place you both on similar footing before making decisions wherein you know the extent and value of your assets and obligations, and you know one another’s financial circumstances and income situations. Mediation begins with an agreement to open the books and exchange all pertinent information so that the couple can be comfortable in having clear figures to work with. Litigation may involve couples cooperating with exchanging this required information, but often ends up with formal avenues of discovery needing to be used to compel the exchange of this information.
Recognizing the responsibility to comply with this exchange, and agreeing to do it cooperatively is one simple way to make the divorce process a little easier. Exchanging this information is advancing the education process. Knowing what your rights and responsibilities are is the first part. Knowing what you have, what it is worth, and what you each make is the second part. Once these two steps are done, you are ready to come up with the solution. Divorce is a little easier when you use a process focused on accomplishing the education and disclosure process promptly in the beginning.
Exploring Options and Settling. When we are settling divorces there are the standard ways of doing things. If you have a house bought during marriage at divorce the Judge will likely order that one of you shall proceed with buying the other one out or that the house will be sold and the proceeds split. In mediation this is certainly an option, but there are also a lot of other options that might make more sense. Maybe you both agree that now is not the best time to sell. Maybe your child has one more year left in high school. Maybe selling the house means losing the low mortgage rate and incurring costs associated with the sale.
When resolving your divorce getting creative may help to accomplish a more mutually beneficial resolution. Now that you sit in an educated place, and have the documents and data needed, now make sure you have a good idea of what the various options are. In litigation, an attempt is made at settlement prior to trial, and if agreement is not reached a Judge will determine the outcome. Most cases settle prior to trial, but charting a course that delivers you to this place where final decisions are made in an efficient and practical manner is the key to making divorce a little easier.
Formalizing it. Once settled, all that is left is the paperwork. The formalities involving the Court in mediation include choosing one spouse to be the Petitioner, and preparing and filing a Petition with the Court. Service of the Petition once filed which can be accomplished by mailing with acknowledgment of receipt. Preparing the agreement, making any necessary edits, and getting a final draft together. Formally exchanging disclosure so that compliance can be certified with the Court. Drafting final documents, signing, notarizing and submitting the final packet to the Court for processing. Through mediation this paperwork is typically generated by the mediator. Review it carefully to make sure it does as you wish. In litigation the attorneys will handle the preparation of the paperwork, either as a settlement, or to be signed off on by the Judge after trial.
So divorce is as easy as 1-2-3-4-5. (1) Work to get your emotions under wraps so you are in a good place to proceed with the next four steps. (2) Get educated. Find a professional that is focused on placing you in a well educated position to make these important decisions. (3) Open the books. Exchange information not only because it is required by the Court that you do so, but because it will more quickly deliver you and your spouse to a place where you can begin making decisions. (4) Explore your options, get creative. Come up with a resolution that is best for your family, then (5) get it all written up so the Judge can sign off on it and you can begin moving on with your life. Divorce can be daunting at first, but by breaking it down into these simple stages, it hopefully will become a little more manageable for you and a bit easier to work your way through.