You can’t make another person be something they aren’t.
In a perfect world, you probably would not be getting divorced. So if you are going to go through mediation, the collaborative process or litigation, your soon-to-be-ex-spouse is not going to have a major personality change. If he/she was selfish during the marriage, he/she will be selfish during the divorce. If he/she was stingy, he/she will continue to be that way.
Keep an open mind.
If you approach the divorce process with a mindset like: <i>“I only will accept X, Y and Z and nothing else.”then not only won’t you do well in the mediation or collaborative process, you will spend a significant amount of unnecessary funds in the litigation process, as well.
Yes, you should have a basic plan. Yes, you should have an understanding of your financial picture and where you want to be at the end of the divorce. But you also need to be flexible and able to compromise. You also need to hear what your counsel is saying . If you think you’ll be the first to get something no one else gets – what we lawyers refer to as “making new law”- then great. But, remember, you may not be successful and whether you are or are not, it will cost you thousands of dollars to get there. For everyone else, consider these tips:
Get advice from a specialist in your state! Family law differs from state to state</span></i>. Even neighboring states such as New Jersey and New York have significant differences.
Be transparent. Be honest and open when providing information to your spouse and the professional working on your case. Trying to hide or mislead the other side about pertinent information, such as the existence of bank accounts, can deal a fatal blow to the entire process. Even if you don’t think it’s a big deal, when the other side finds out that you lied about something relevant, it may not be able for him or her to trust your information any longer. The voluntary process of mediation or collaborative law could then fall apart.
Act in good faith. If you reach an interim agreement during the mediation or collaborative process, abide by it. If you agree in your mediation session not to disparage the other party to the children and then you go home and disparage him/her, you’re being counterproductive to the process. If you agree not to spend money from a certain account and then withdraw most of the money, it will just cause the other party to get angry and distrust you. Eventually, you will end up in dragged out litigation. The more you uphold the interim agreements, the more likely your spouse will have reason to believe you will abide by the final agreement.
Take responsibility for your actions and your future.</b> Don’t blame everything on everyone else and don’t rely on everyone else. Bad outcomes are usually a two-way street. This applies to your marriage and to your final settlement. Don’t rely on theprofessionals to make all of the decisions. Be actively involved and know your finances, figure out what is best for you, and work with the professionals.
You are your own best friend and your worst enemy. The divorce process is a stressful time for everyone involved so you need to find time to relax and get over the trauma of the separation. At the same time, you need to keep your emotions from causing you to agree to terms that you can’t live with. You shouldn’t agree to a settlement you’re not satisfied with, out of guilt about how the marriage failed or out of the hope that there will eventually be a reconciliation.
Justice? There is a misconception that “having your day in court” will not only give you the chance to plead your case to a judge, but will result in justice. For example, believing theJudge will punish your spouse because he/she had an affair – not likely to happen. There are rules of evidence and, often, the things you think should be heard can’t be and, many times. the things you think are important to the outcome, are not. The reality is, that leaving matters up to the court is often a disappointing experience for both parties.
Just Because You Don’t Like It, Doesn’t Mean It’s Not Fair. You won’t get everything you want. A divorce involves compromises made by both sides. If both parties are satisfied, but not overjoyed with the results of the process, then it likely resulted in fairness. Focus on the issues most important to you and be prepared to compromise, even if you’d rather not. If neither side agrees to compromise on any matters of significance, you’ll end up in litigation and your divorce will become a much more expensive, painful and prolonged exercise.
These are some of the things to consider when you weigh the merits of collaborative law, mediation and litigation. Resources like www.collaborativepractice.com can put you in touch with collaborative professionals in your state and www.apfmnet.org can put you in touch with mediators in your state.
Lorraine R. Breitman, Esq.