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Options when faced with divorce

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by Gary L. Borger

Divorce sometimes comes as a shock and sometimes as a mutual decision. In any event, it is usually a first for most married couples facing this crisis. Questions will flood your mind:  What do I do next? To whom should I turn? Who can I trust?

Meeting with a lawyer is inevitable but which one? Usually friends, relatives, and co-workers will make suggestions. Sometimes the suggestions are good; sometimes they’re not. Always check the lawyers’ web sites first. Do they seem to concentrate in family law issues such as divorce or do they have a general practice? Those who concentrate in family law will usually have the most knowledge and experience with divorce. Does the web site exude confidence? Is it inviting?

Most attorneys charge a flat fee for the initial divorce consultation. That gives you the freedom to get all of your questions answered without watching the clock as dollars tick by. The initial consultation allows you–and the attorney–to size up and feel out each other. Does this seem like a good fit for me? Does the lawyer seem to care about me or am I “just another case?” Will the lawyer handle my case or shunt it off to a younger, less-experienced associate (not always a bad thing–if your income and assets are limited, you don’t need the most senior and experienced lawyer in the firm)?

What happens next? The lawyer should tell you your options, basically:

  1. You and your spouse can try to resolve as much as you can on your own, saving legal fees and limiting contention to what is really in dispute;
  2. You and your spouse can work with a mediator to help you resolve things directly with the mediator’s help;
  3. You and your spouse can retain lawyers trained in collaborative divorce and work together as a group, collaboratively, with a divorce coach and a neutral financial expert, if needed, instead of the lawyers working against each other, adversarily;
  4. You can have your lawyer handle all negotiations with your spouse’s attorney, once he or she retains one; or
  5. You can have your lawyer file for divorce and serve the filed divorce complaint and a summons on your spouse, starting the divorce litigation process in court.

If you want to conserve your money spent on legal fees, if you want to have a respectful and civil relationship with your spouse after you are divorced (especially where children are involved), I strongly urge you to consider #1-3 above.

Due to high emotions such as anger, resentment, feelings of betrayal, etc., #1 often is not a viable option.

If your spouse is not likely to be honest about finances and has a greater knowledge than you of income, assets, debts, and living expenses, #1 & 2 may not work and even #3 may not be successful.

If #1-3 are not viable for you, understand that less than 2% of all divorces filed in court actually go to trial; the other 98+% settle at some point prior to a trial commencing. In such case, your attorney will serve as your surrogate, to do his or her best to negotiate settlement terms with your spouse’s attorney. Whether settlement efforts are successful depends on many factors, the most significant being how you and your spouse are reacting to efforts at settlement and who you and who your spouse each has chosen for an attorney (as some attorneys are more settlement-oriented and others more litigious for many reasons).

Just remember:  Try not to allow your emotions to waste your resources by fighting with your spouse where fighting can be avoided and keep your eye on the goal of reaching a long-term, viable and durable settlement that meets your most important needs and keeps as civil a relationship with your spouse as you can maintain or recreate so your children don’t suffer, worrying about how each of you will act when you’re together at their school events, bar or bat mitzvot, graduations, weddings, baptisms, and at and after the birth of grandchildren.