People often ask me what the most important thing is to know or learn about divorce when confronted with the possibility of experiencing this most difficult life transition. My response is that there are two fundamental questions to ask.
First Important Question
If you are the one initiating the divorce, the first question to ask is, “What do I think that divorce will do for me?” Often people are mistaken with what divorce will or can accomplish. One client believed that it would allow him to have the ability to parent his teenage sons the way he wanted unencumbered by the other spouse. Another believed that she would be better able to protect her young children from the unsafe driving of an in-law. Yet another client thought it would insulate him from his spouse’s debt obligations. Yet divorce rarely results in any of these outcomes.
At the same time that people overestimate what divorce can accomplish in certain areas, they underestimate the negative impact divorce may have on not only themselves, but on all affected family members. Judith Wallerstein’s research on children of divorce has shown that its effects continue to be present in children even 25 years after their parents’ divorce. So it is very important to be thoughtful and conscious when making the decision to divorce.
If you are the non-initiator of the divorce, the first question to ask is, “How possible and how interested am I in working to make this marriage better?” If your spouse is already out the door, then your answer is probably “not very possible.” In Illinois, while it takes two people to get married, it only takes one to divorce. So even if you don’t want it, you probably aren’t going to be able to stop it. If they are not out the door, then there is a lot more to consider. Finding and working with a good marriage counselor or therapist is one approach to working through that gray area. Another component would be for you and your spouse to work with a specially trained coach to put your marriage on project status.
The Next Important Question
If the decision to divorce has been made by you or your spouse, the next important question is “What are my goals for my divorce?” While many people get focused only on the outcomes –asset division, support amounts, and parenting; thinking about the process you use to get to those outcomes will have an enormous impact on how pleasant your future family gatherings- graduations, weddings, grandchildren’s birthdays, etc – will be, how empty your wallet is and how your divorce agreements meets the needs of you and your children. Which process you use will also determine, to a great extent, how much control you have over your divorce in terms of privacy, timing, divorce agreement content and the selection and use of professionals.
In Illinois, the most common processes to get divorced are: litigation (most common), mediation (next most common), collaborative divorce (newest process), and Pro Se (you represent yourself).
Litigation
Most people are familiar with the litigation process. This process is based on an adversarial system where you negotiate through your lawyers. Typically the first action in this process is that your case is filed in court which, in effect, hands over control of the case to the judge who sets the timetable and, in the absence of an agreement, makes the final decisions. If either parent requests sole custody, that usually results in custody evaluations being required, which add to the case’s cost, length and acrimony. When spouses are unable to cooperate or unwilling to take responsibility for their decisions, this is a process that requires neither.
Mediation
Another common process is mediation. Here, you and your spouse meet with a mediator and you each negotiate for yourselves how you want to allocate your assets and liabilities, spousal and child support, parenting arrangement (custody) and parenting time (visitation). One common pitfall of this process is the expectation that the mediator will insure that the agreement is equitable. The mediator’s role is to facilitate an agreement between the spouses, not to insure that it is equitable. For that reason, it is important for each spouse to hire their own attorney early in the process so each may become educated about what “equitable” means and to have a “thought partner” to prepare for the mediation sessions. It can also be helpful to have a coach or therapist serve as a “thought partner” on parenting issues. When spouses are able to cooperate, have a relatively equal power balance, are comfortable negotiating and are able to be accountable for their decisions, the mediation process allows for control of the process, the timing, the outcome and privacy at a cost that is typically less than litigation.
Collaborative Divorce
The newest divorce process is called collaborative divorce which started being offered in Illinois about 10 years ago. In this process, you and your spouse use specially trained lawyers, and other advisors as needed, including divorce coaches, a financial specialist and a child specialist, to help you reach an out-of-court agreement. In fact, the lawyers sign an agreement which requires them to withdraw from the case if an agreement cannot be reached. The goal is to solve problems jointly using the appropriate professionals for the task at hand. Often, the parenting arrangements and parenting time are discussed with the coaches, looking at the needs and concerns of both parents and children and once determined, the elements of the agreement are given to the lawyers to put into the necessary legal format. The financial information is gathered by the spouses and brought to a specially trained financial neutral who creates a marital balance sheet, budgets and provides financial scenarios for the future well-being of all family members. Spouses who are more comfortable negotiating with the support of a team, are able to work for the good of all family members, who are able to let go of some smaller short term issues in order to achieve their most important goals and who can benefit from the additional support of coaches and financial neutrals are good candidates for this process. Collaborative Divorce allows for control of the process, the privacy and the timing and usually provides the most comprehensive and customized outcome at a cost that is typically less than litigation but more than mediation.
Pro Se
This process is typically used when the case is simple, the assets few and/or the resources are limited. It is the least expensive process.
Final Thoughts
It is so easy to believe you know what divorce will do for you and to start a process that will leave you coming up short of your goals. Before you begin, ask yourself these critical questions and get accurate answers. The key to a successful outcome is identifying and understanding your long term goals and making sure that the road you choose can take you where you want to go.
Kate van Dyke, M.A., P.C.C.
Divorce Counseling and Coaching, Inc.
kvandyke@divorcecc.com
847.275.4643
© 2010 Kate van Dyke, Divorce Counseling and Coaching, Inc.
The above information is provided for educational purposes only and is not to be considered as legal advice.