Peaceful Divorce

Check out this great article from our member Belinda Rachman, Esq. and please share it with anyone you think it might help!

When you had your child or children your life changed from being focused on yourself to suddenly having to consider how all your life choices would impact the kids. That is the way it should be. What is in the child's best interest should always be a parent's top priority especially when considering divorce.

The first thing you should know is our adversarial legal system is not child focused or family friendly. The emotional and financial price you pay when you each hire separate divorce lawyers is higher than you can now imagine.

Before I became a divorce attorney I was a special education teacher. My Masters is in Special Education, focusing on teaching severely emotionally disturbed children, so I came to the law with a powerful bias to act only in the best interest of the children.

The 2nd important fact to know is how comfortable so many divorce lawyers are in spending their clients' college fund instead of quickly and economically helping the couple to negotiate a fair deal. After 8 years of litigation and witnessing the total financial and emotional devastation of too many families I vowed to no longer take adversarial divorces and to do only divorce mediation. In the following 3 years, after working with over 150 couples with 100% success rate, I am convinced that divorce mediation should be the solution of first resort for 85% of the couples who are contemplating divorce.

So the 3rd thing you need to know is there is an alternative to divorce court - mediation.

It is easier to deal with a situation when basic information is already known. In the 8 community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) property division is pretty clear. What ever was totally owned prior to marriage or received by gift or inheritance is separate property that goes to the spouse who owns it. If it was partially paid for using wages or income earned during the marriage, the “community” gains an interest in it that can be calculated.

Division of property in community property states is one of the easiest issues to deal with because it is so clear cut. But what about the other 42 states? These states use an equitable distribution system to divide marital property. Each state has its own rules that can be ascertained prior to starting the divorce process. So there is some uncertainty in non community property states but an experienced lawyer/mediator generally knows what the court will do in most situations and can be a valuable guide to couples who are unfamiliar with the laws.

The 4th thing to keep in mind is that there is no point in fighting over property division. You can protect your co-parenting relationship and end up with more property if you divide everything the way a neutral 3rd party (mediator) suggests.

In litigated divorce cases, child custody and visitation issues can be the most contentious and emotional. If the parents can agree to a custody arrangement, which they eventually do in 90% of custody cases, they can avoid court altogether. Why should a couple wait until they are on the courthouse steps to make a deal? Only 10% of custody cases are litigated.

A couple could always seek the services of a child therapist or parenting coordinator to advise them instead of going to court. The courts typically apply a “best interest of the child” standard in determining who should get primary custody. Wouldn't the parents themselves be in the best position to decide how their children should be raised?

When a couple works together in mediation they are in control of the final outcome, not lawyers or judges. When the couple has an intention to effectively co-parent by always keeping the best interest of the child foremost in their mind, they will produce a much more satisfying outcome than if a solution is imposed upon them from above. Child custody issues are the most inappropriate issues to be decided within an adversarial system.

The win/lose game that is played in court always results in tension between the parents. Not only will this tension negatively affect the health and happiness of the parents but the children will be caught in the middle of a battle, ducking verbal and emotional bullets as they fly over their heads. The adversarial system does not protect the co-parenting relationship of parents and should be avoided if at all possible. An emotionally vulnerable client in the hands of a “zealous advocate” who is more concerned with enriching themselves than in helping their client is a dangerous combination.

The last thing to keep in mind is that avoiding divorce attorneys and court should be the #1 priority if you want to protect your health, spirit, co-parenting relationship and pocketbook.

Belinda and I have agreed to disagree about whether lawyers should be used in the mediation process. She thinks a resounding, "NO!", while I think that lawyers who are on board with the concept of Peaceful Divorce are of value. - Cynthia

Ms. Rachman has been a family law attorney since 1996. For more information about how divorce mediation works please go to http://www.divorce-inaday.com where you can hear a very informative audio program about the differences between mediation and litigation. If you are considering divorce it is important to have all the information before you proceed. You only get one chance to have a “good” divorce and you owe it to your children to consider mediation."

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