Peaceful Divorce

Which Method Offers More Flexibility: ADR or Old-Fashioned Divorce?

{4.1 minutes to read}

The differences between litigating a divorce and trying Alternative Dispute Resolution (ADR), like mediation and collaborative law, are numerous - but perhaps the most important area where these differences come into play is property.

Everything is fair game. You don't get to hide anything. But what is marital property versus separate property? And how does it play out when the parties have different perceptions or interpretations of it?

It comes down to whether or not the state is a community property state or an equitable distribution state. Georgia is an equitable distribution state.

For example:

  • Community property: All property accumulated during the marriage, including debts. This is not true for property and debts that are specifically designated otherwise, like a credit account in only one person’s name.
  • Separate property: This can include property acquired prior to the marriage, gifts, court awards, inheritances and pensions. Property acquired with separate property remains separate property; for example, a boat bought with inheritance money. Be aware, however, that some separate property items may become community property, such as a business started before marriage but sustained by the marriage (this type of situation is usually referred to as commingled property).
  • Marital property: If you purchase or maintain items with joint funds, then the property will be considered marital property.

In these situations we know what the law says, but is it the right thing to do? Could litigation be flexible enough to address the inadequacies of the law, or is mediation or collaborative law the way to go?

The answer looks very good for mediation and collaborative law, but unfortunately litigation does not offer much flexibility. For example:

A divorcing husband and wife came to me with a good understanding of separate property and marital property. They were both attorneys, and the wife had received $30,000 from her father's inheritance, which went into a joint account.

They ended up spending that sum and replenishing it several times over. When it came time to divorce, they decided to try collaborative law, where she made the assertion that the $30,000 should be considered separate property. The husband disagreed because the law no longer viewed the sum as separate property, because it had been in a joint account.

After some discussion about the wife’s reasoning and feelings - that the inheritance was more of an emotional attachment because it was the only thing her father left her - the husband saw her side of it and agreed with her wishes.

As this case study shows, the ADR model of divorce is a tool for divorcing spouses to use as they wish - as opposed to the opposite in traditional divorce. To learn more about ADR - including mediation and collaborative law - contact me at 1.888.U2.AGREE.


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