Not making a decision is a decision. In a divorce context, not making a decision about how you want to resolve alimony, child support, equitable distribution and custody issues is a decision to let your spouse decide how that will happen. And, it is frequently a decision to go to court, whether you intended that or not.
Take this common scenario: A Wife (or Husband) tells her Husband (or Wife) that she wants a divorce, and suggests that they use the collaborative process because it will protect the kids and their finances.
In some cases, the Husband’s reaction is to do nothing, and not make a decision on how to proceed. Essentially, stonewalling.
Sometimes this happens because people think that the divorce won’t happen if they don’t participate. They think, “If I don’t pick a process, then a divorce cannot or will not happen”. The truth is that it will happen with or without them. But, it will happen in a public courtroom instead of a private conference room. And, the parties will have lost most, if not all influence over the process and outcomes for their children and their financial lives.
Other people in this situation think that agreeing to a process means that they are agreeing with the divorce. That causes them to avoid choosing a process as a means of voicing their protest of their spouse’s decision to be divorced. This is a self-defeating approach. It is possible, and very common, to both disagree with the divorce and participate in the collaborative divorce process.
Many people operate under the false belief that they have to agree to a divorce. In North Carolina, a party can obtain a divorce without their spouse’s consent. So, if your spouse tells you that they want a divorce, they can get one whether you agree or not. You might be able to delay it, but you cannot prevent it.
Further, failing to choose a divorce process forces the other spouse to go to court. A courtroom divorce process is the only process that one party can force the other into. So, if one spouse refuses to choose collaborative divorce, mediation or another process, then the other spouse has no choice but to seek the help of a court. Therefore, refusing to make a decision is often a decision to go to court. That option is typically the opposite of what both spouses wanted.
So, if your spouse has told you that they want a divorce, then you need to investigate your process options. And then you need to participate in choosing a process. If you don’t, you will be making an unintentional decision, and that may well be choosing a battle in court.
Many divorce clients want their attorney to fight for them. That can mean a lot of things. In my experience what most people really want is an attorney that will help them obtain the best possible outcome. “Fight” is just an easy one-word way of saying that.
But, if your attorney is fighting for you, they have to fight against something. The question then becomes: What are you fighting against? How do you define your “enemy”?
In the traditional, adversarial, litigation based divorce process the enemy is typically defined as your spouse. Therefore, you fight your spouse. Your time, money, energy and emotion are spent fighting your spouse. And, your spouse’s time, money, energy and emotion are spent fighting you. (And what happens to the kids in the midst of all that fighting?)
The adversarial way of handling a divorce assumes that dumping all of these resources into fighting each other will produce a “fair” result. And, fair generally means equally bad for both of you. In fact, divorce attorneys love to say, “A good result is one that everybody is equally unhappy with.”
In contrast, the Collaborative Divorce Process does not make your spouse the enemy. Instead, for each spouse, the enemy is the set of challenges and practical issues that can make divorce so difficult for you and your family.
Instead of using your resources to fight against the mother or father of your children, collaborative divorces use the combined resources of both spouses to fight against the practical problems that frequently come with divorce. These issues (and others) are most often the real enemies to a divorcing couple:
- Insufficient money to support two households
- Emotions that derail effective decision making
- Practical difficulties in co-parenting children from two households
- Differing parenting styles in two households
- Complicated valuation issues for assets or debts
- Overwhelming debt that cripples each party financially
- Blending new relationships into the family
- Paying for college and meeting financial needs of family
- Planning for retirement while meeting financial needs of family
The adversarial process most often produces a result that is equally bad for each party without solving any of these problems.
The Collaborative Process most often produces a result that is beneficial for both parties (and their kids) and solves many, if not all, of the issues in that list.
In divorce, the reality is that the enemy is not really your spouse; the enemy is the set of problems that come with divorcing your spouse. So, it makes sense to choose a process that recognizes the real enemy and focuses your resources on defeating those issues, instead of trying to defeat each other. Collaborative Divorce is that process.
(Special thanks to Michael Kothakota of Wolfbridge Financial, a combat veteran, for introducing the concept of “defining the enemy” to me.)
Most lawyers will tell you that there are many hidden perils of taking your family law matters to court.
One of those hidden perils is the loss of your privacy.
Privacy has many forms. One form that people frequently don’t consider is the loss of privacy in child custody actions.
This loss of privacy takes the form of the government interfering in parenting decisions that it would have no right to inquire about if you were not in court. In court, everything you do as a parent and every decision you make regarding your children becomes a matter for public scrutiny.
This recent story about Lindsay Jackson, a “Toddlers & Tiaras” mom, is a cautionary tale: Jackson lost custody of her daughter, Maddy Verst, at least partially because of her decision to put her daughter in pageants.
If the case were not in court, then it is hard to imagine that a governmental agency would have grounds to inquire into this kind of issue in a family. No one has the power to tell a parent not to put their child in pageants; unless you are in court.
But, once the matter goes to court, parenting decisions and behaviors that have been sheltered by your privacy are open to judgment and review by a court, and the public. And like Bill Verst, Maddy’s father, most parents in court are only too willing to bring up these kinds of issues in front of a judge.
Clearly, Lindsay Jackson believed her daughter’s participation in pageants was good for her daughter, a positive experience and an unquestionable parenting decision. Turns out, the father, the court and the court’s psychologist did not agree.
Before you run to court to open up your family’s life and your parenting decisions to judgment by a court and the public, you may want to ask whether you want to sit in the crucible of explaining your parenting decisions to a judge. Your privacy may be more important than your need to fight. And, while you may consider the decisions you’ve made for your kids to be above reproach, the people in power may not agree.
Fortunately, you can resolve your child custody issues without sacrificing your privacy and without opening your family and your decisions up to public scrutiny.
Collaborative law and mediation allow you to work out the issues while maintaining your privacy and your family’s privacy.
I am happy to announce that co-author Michael Kothakota and I have published our latest article on Collaborative Divorce in Resolved: Journal of Alternative Dispute Resolution.
Interdisciplinary Collaborative Divorce: A Process for Effective Dispute Resolution is intended to provide a brief but thorough explanation of the interdisciplinary collaborative divorce process for both practitioners and clients.
Each professional and prospective client must determine whether the ICD process is appropriate for their situation. But, our hope is that this article will provide an introduction to the process and help people make more informed decisions.
If you have questions about collaborative divorce after reading the article, then please do not hesitate to contact me to discuss the process and whether it may be right for your family or your practice.