By Gary Marsh LMSW, Facilitative Divorce Mediator
Finding the best path to agreements about separation, property division, parenting, and support is difficult because there are barriers to seeing the way clearly.
Some barriers are internal:
- Memories of the road that led to this traumatic and unwelcome place.
- Grieving the lost fantasy of having a life long companion or the fantasy of an estate intact and available at retirement.
- The fear of becoming destitute.
- The fear of being cheated or unknowingly making mistakes you will regret for the rest of your life.
- Feeling betrayed, rejected, guilty, angry or resentful.
Some barriers are external:
- A spouses hurtful, confusing and/or provocative words and behavior.
- Friends who give dubious advice.
- Questions needing an answer that are for issues not understood.
In order to deal successfully with the obstructed view, tools and understanding are needed.
Divorcing spouses have many reasons to agree:
- The health and welfare of children
- The cost of the divorce
- Financial issues
The health and welfare of children
In a divorce, children do best when parents are able to cooperate and when children are not exposed to parents’ hostility toward each another. At the beginning, parents can protect their children by committing to cooperation and to keeping the children out of the parents’ conflict.
1. Commit to cooperation. Functioning as a family successfully from two households takes planning, coordination, and communication.
2. Establish goals together. How much will you try to coordinate households? Depending on the age of your children, consistent discipline strategies and consistent expectations about bedtime, schoolwork, curfew, dating, and driving can be very important. Which decisions will be made together? Design a plan, including begin and end times, that lays out specifically how the children’s schedule will work. Get agreements on the amount of vacation each parent will have with the children and how school breaks will be handled each year. Decide how frequently communication between parents about day-to-day child issues and larger discussions about school year and summer vacation will occur. Decide a strategy for what happens when agreement is not reached.
3. Keep your negative feelings toward each other away from the children. Speak only positively or neutrally about the other parent in the presence of the children, including when you are on the phone and children are around.
4. Have discussions about the children away from them.
5. Communicate directly, not through the children.
The cost of the divorce
Spending as little as possible on the divorce will leave more resources for other needs. Several methods are available to you, each with varying costs:
1. Negotiate on your own. The biggest savings can be achieved by negotiating the issues in the divorce your selves. The most frequent obstacle people have is the discussion becoming emotionally volatile. These strategies may help. Some people can better control their emotions in public; meet at a restaurant or public place. Another strategy is to set the discussion on an emotionally charged issue aside and come back to it at another time. Talk about other issues. Any decisions made on your own will save money.
2. Facilitative Mediation. If talking is difficult because one or both of you becomes emotional, you have trouble staying on one issue, your discussion is disorganized, you are not hearing each other, or you are unsure of the issues, hire a facilitative mediator. Going through a divorce is like being lost in the woods. A mediator can guide both of you out. A mediator will organize you, keep you communicating productively about one issue at a time, help you develop strategies for dealing with issues, and help clarify each of your needs and interests. The mediator will also maintain focus on the decision-making process. A facilitative mediator is neutral. You make all the decisions.
3. Attorney negotiation. In a typical divorce, attorneys negotiate for their clients. Two people are paid to negotiate. If you are unable to negotiate yourselves you may need someone to negotiate for you. You can still save money, however, by using the other two methods to get as many decisions made as possible. Thereby shrinking the task of the attorneys.
4. The Courts. If attorneys are unable to settle the issues, they can and often do request a referee hearing or another problem solving strategy arranged by the court. Attorneys will most likely be present. It takes each attorney time to prepare, and the hearing or meeting can last several hours to an entire day. If you find yourselves going to a referee, or another court sponsored program, you can still save money, as before, by negotiating as many agreements as possible using other methods.
If you find yourselves in front of a judge in an evidentiary hearing or trial, you have entered the most expensive place a divorcing couple can be. Sometimes one party in a divorce needs to hear from a judge what the judge would decide on an issue. You do not need a trial to get that information. Ask your attorney. In most courts, there are pretrial hearings, settlement conferences, and motion hearings where questions can be asked of the judge. These are places where the question can be asked, and cost can be kept to a minimum.
The second biggest savings in divorce can be achieved by sharing information freely. Make copies of documents, and make sure both of you have them.
You can also save money by avoiding duplicating efforts. If you need information or advice from an expert, hire one together.
The less you involve others, the more privacy you have. If you negotiate the issues in the divorce yourselves, you have the most privacy. Using a mediator adds one person. If you have attorneys negotiate for you, add two people. Go to a referee, add another. If you discuss the issues in your divorce in an evidentiary hearing, you have no privacy.
A court hearing is required to be divorced. In the State of Michigan, if you have an agreement, only one of you has to be present to testify. The Judge at the hearing signs the judgment document that makes a couple legally divorced. The hearing itself is public, but if you go in with an agreement (a consent judgment), you have protected your privacy as much as possible.
The judgment document will be held by the court and is a public record. The judgment document must include information having to do with children, support, and court orders but most information about assets and liabilities can be in a separate agreement referred to but not attached to the judgment. The separate agreement is called a settlement agreement. By having a settlement agreement kept separate from the judgment, you can keep information about your property division private.
Plan your separation, support, and property division to best meet everyone’s needs.
Plan your separation and support so that adequate resources can be available to set up and maintain two separate households. That way no one will suffer financial hardship.
Design the property division to suit your different needs. If one of you needs enough cash for a down payment on a house and/or to keep the mortgage payment at a level you can afford, together, if the resources are available, you can structure the property division to allow this to happen.
When couples make decisions, they are more likely to follow through on what is required. In other words, an agreement designed by you is more likely to work.
Making decisions together allows issues to be addressed in a timely way. This can only happen with cooperation. Negotiating through attorneys or asking attorneys to file motions with the court takes time.
Some couples can save money by filing income taxes jointly. Your marital status on December 31 of any tax year, determines your choices. If you would like to file taxes jointly for a given year, timing the divorce might allow you to have the option, ask your accountant.
Delays cost parties money. Deal with the court system when you are ready. Then you are not paying anyone to explain to the courts how much more time you need to get ready. This can be accomplished by filing the complaint after you have an agreement.
In Michigan, a complaint needs to be filed to begin the process. The statutory wait before a couple can finalize a Divorce is 60 days without minor children and 180 days when the couple has minor children from the date of filing the complaint. If you are ready with an agreement, sometimes the court will waive part of the 180 days, ask your attorneys.
Divorce is a traumatic event in the lives of everyone involved. Conflict is traumatic and increases stress. To keep trauma to a minimum, keep conflict to a minimum.
You can keep conflict to a minimum by avoiding surprises. Until you untangle yourselves financially make all decisions, about spending or moving money, together. If you would like to close out a joint savings account, talk about it together. Plan together how your interactions with the court system will proceed. Decide together; who will file the complaint and when filing the complaint will occur. Make agreements you intend to keep. Making decisions about the divorce together and sticking with agreements will reduce the feelings for both of you of your life being out of control. It will also maintain and improve trust.
You need to find a way to think about your situation that will allow you to deal civilly with each other. One way is to picture your marriage as a sinking ship. Your task is to make sure everyone gets safely into lifeboats and away from the ship.
When you make decisions yourselves, you control the outcome. Turn the decision over to someone else, and they control the outcome.
It is ironic that at a time when a relationship is coming apart, coming together is needed. However, decisions need to be made, and the only question is who will make them. It is impossible for one spouse to control the outcome by him/herself. Spouses can control the outcome if they share control with each other and by designing it together.
You are most likely to feel the divorce settlement is fair, if you design it yourselves.
Everyone has his or her own version of fairness. If you need to feel that you were treated fairly in your divorce, you need to limit the number of decision-makers as much as possible. If you and your spouse are the only decision-makers, then there are only two measures of fairness to meet. Because everyone has his or her own version of fairness, each decision-maker you add diminishes the likelihood that you will feel the divorce is fair.
It is possible to make your own decisions about your divorce and address all of these concerns successfully. Keeping your shared needs and interests in mind, will help you make decisions and reach agreements.