A few weeks ago I went to the annual Pennsylvania Council on Mediators Conference. One of the wonderful things about going to a conference is that it gives me time away from the day-to-day practice to refresh and reconsider. The positive energy in the seminar rooms reminded me that for many couples there may be a kinder way to dissolve their marriage, and I came away with renewed dedication to promoting the tools in my alternative dispute toolbox to make the divorce practice less stressful for our clients.
Much of traditional divorce practice can devolve into a win/lose strategy. When the Court titles the case Smith versus Smith or Jim versus Jane, the matter organically starts out as he against she fight. So, when we begin with Jim fighting Jane, or vice versa, it seems reasonable for the parties to think they need a “heavyweight” in their corner. Indeed, in our office we sometimes field calls from potential clients asking if we can fight for them like a bull dog? We understand that clients may be hurt and/or angry and think they need a lawyer who will bark and roar and bite if necessary to win, but we think this approach to divorce oftentimes results in long-term destruction to family good will, and fractured lives– especially if children are involved. Alternatively, if the divorce process can be framed not as a one versus the other, but as an action in the best interests of the family to move forward with the least destruction all the parties (children included) may come out more whole.
Consider Alternatives to the Traditional Process
Traditional divorce often is a closed, rather than an open process. An adversarial couple may dispute sharing child custody, schedules, routines, etc, child and spousal support may be litigated and equitable division of assets may be hotly disputed. Not surprisingly, the more unresolved feelings between the spouses, usually the more issues end up in court rather than worked out through negotiation and settlement. Custody may end up being decided by a third party who really does not know the child(ren). Nasty things may be written in pleadings filed with the court. A court appointed Master may determine how much a spouse will pay to support a family. Parties reluctant to divide assets fairly may try to hide assets. Costly discovery becomes necessary when there is distrust and fear of hidden assets. The attorney must do due diligence to look for the hidden assets. Parties may return to Court numerous times for hearings. The process can drag on, and costs will escalate. In the end neither side may be happy with the results, nor with the aggressive attorney that the party wanted so desperately to hire at the start. Indeed, one or both parties may find that the “bulldog” chewed up a lot of assets, and tactics employed unintentionally may have destroyed any goodwill that still was intact in the family. Continue reading