Lawyer Andrew Bruskin explains three things to think about that could make a divorce easier for both side.
Last week, we had a couple walk into our law office. They greeted us and asked if we could mediate their divorce. After a brief consultation, we worked out a stipulation that both parties signed. After two visits to our office—and two hours of their time— their divorce case was essentially over.
“What a nice couple”, we thought as they left. “Too bad most divorce cases are not like this.”
Indeed, many matrimonial disputes are not pleasant. Most couples end up in court, bitterly fighting over every aspect of their case. But for lawyers, these issues are big business.
So what are you to do if you are married and are contemplating a divorce? Before you run to your nearest lawyer, take a step back and try to pursue these steps first.
STEP #1: TRY COUNSELING
Many men are surprised when their spouses file for divorce. Women initiate the majority of divorces in the United States. Nevertheless, we have a good amount of men who walk into our door who initiate divorce as well.
If you are a man contemplating divorce, then the relationship is probably on the rocks. The option of seeing a marriage counselor may work when the marriage starts to hit rough waters. If you find you are in this stage—and especially if children are involved—you may want to see a marriage counselor and try to work out the relationship with your significant other.
STEP #2: DECIDE ON CRUCIAL ISSUES YOU WANT OUT OF A SEPARATION
If step one is not working and you feel the marriage has broken down, you should iron out what you want in a separation agreement or a divorce. If you do not have kids, then you will want to focus on any marital assets and any maintenance (i.e. alimony.) If you have kids, then visitation and child support will also need to be decided. Think about how this will work before you speak with your spouse.
It is better if you can put each of these issues into three boxes titled: 1) what I must have, 2) what I’d like to have, but don’t really need and 3) What I can do without/don’t need. When making this list, it is best to speak with an impartial family member, friend or trusted colleague who can guide you through this process. The hard part here is to separate your emotions and decide how things should work out equitably.
Remember: emotions are expensive. It is better if you can work something out with your spouse instead of arduously litigating this matter.
STEP #3: FILE FOR AN UNCONTESTED DIVORCE
In any type of matrimonial setting, a couple has the option of getting either a contested or an uncontested divorce. In a ‘contested’ divorce, there are issues that have to be litigated in court because the parties could not agree on the divorce, child support obligations, maintenance or how visitation should be worked out.
Why is a contested divorce so expensive?
First, each issue usually has to be litigated because both parties cannot agree on anything. Marital assets have to be appraised and often times forensics come into play, where an accountant reviews the parties’ assets and determines their net worth. This is often important when a litigant decides to hide money, property or other assets. There are divorces that take years to complete because both sides refuse to budge on anything.
The most expensive part of the litigation, however, deals with attorney fees. In contested litigation, counsel fees can add up very quickly and can end up costing each litigant roughly $50,000. Most middle class litigants cannot afford these fees. Often times, they have to use up their life savings, their retirement funds or even declare bankruptcy. In the end, the attorneys are the ones who profit.
With an uncontested divorce, the parties have agreed on all aspects of the arrangement. They already agreed that there will be shared parenting—or if joint custody was not an option—then they outline a visitation schedule with the children and stick to that schedule. They already decided how much child support or alimony—if any—will be allocated. Equitable distribution issues are tricky, since they usually include the value of the marital home, businesses and other ‘marital’ assets that are divided between the spouses. If both people are making their own money, then waiving equitable distribution may be the best idea. Some spouses even decide to sell the marital home and then individually pocket half of the proceeds from the sale. A good mediator can help decide what can be considered ‘appropriate’ if both of the parties are having trouble, but still want to go through with an uncontested divorce.
EXCEPTIONS TO THE ABOVE
A word of caution: sometimes, uncontested divorces are not a good idea. This is especially true in cases of domestic violence—whether it is against the spouse, the children or both—or where one spouse is absolutely against separating or divorcing. Each relationship is different and only you may know if this path is the right choice for you. But, if you get along reasonably well with your spouse and they are open to the idea of separating, then going down the uncontested divorce route is the way to go.
photo: dark4 / flickr