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How Can Costs of Divorce Proceedings Be Reduced?By Barbara Lavender, Attorney at Law Q: The problems between my spouse and me that caused our marriage to end might make divorce mediation an impractical forum for us. If attorneys are involved, how can we still minimize the financial and emotional costs of the divorce? A: If not all issues can be resolved through mediation, because of ineffective communication and/or great differences in opinion, working through attorneys can still be approached in a manner consistent with integrity and fairness. It is not necessary or effective to take a battleground perspective in order to achieve a fair result that protects your interests. Express to your spouse your intention to resolve the disputes with as little bitterness and blame as possible. Then choose an attorney who will support you intention to obtain results that are fair and in the best interests of your children and who will foster the process of divorce as the beginning of a new period, as well as the ending of the marriage. Once aligned in that intention, if advised that your proposed strategy will only increase your legal fees and maintain a status of "dirty fighting," and that there is nothing to be gained through such action, be willing to return to your basic strategy of obtaining fairness with integrity. Before getting caught up in the process of dueling positions, prepare for the divorce process by examining certain questions and writing out your basic concepts of fairness. If there are children involved, ask yourself how decisions regarding the children have been made during the marriage, how much and how effectively you and your spouse have participated in making those decisions, whether that method has resulted in decisions consistent with the children's interests, whether a different method would work better and, if so, why. Later, when proposals for child custody are being asserted and considered, evaluate the alternatives from the perspective of this initial personal evaluation of the children's welfare. Further, ask yourself which parent has been primarily responsible for the child care--taking the children to events and appointments, feeding and dressing them, etc. Do the children seem comfortable with the established situation? Refer to this information in deciding which parent the children should live with primarily (the primary residential custodian), in order to sustain a primary relationship that works for them. If you believe the children have not benefitted from the established pattern of caretaking, state your reasons clearly for your attorney so that they can advise regarding the relevance to the children's welfare. Consider what pattern of visitation would allow the parent with whom the children are not living primarily to maintain (or develop) a quality relationship with the children. Then ask your attorney for advice regarding visitation arrangements recommended by a mental health professional for children. If there is a marital home, consider whether the children need the stability of the familiar residence, school and neighborhood friends. If so, consider whether it is possible and reasonable for the primary residential custodian to continue to reside there. If there is a marital home but no children, write out why you believe you should stay in the home, and why you believe your spouse feels he or she is entitled to stay there. Apply the same approach to the questions of division of marital property and maintenance (alimony): consider what you believe to be fair, and why. Your attorney may choose not to read your statement, but as you receive legal advice, use it as a reference standard. Be prepared to abandon beliefs that you are advised are completely inappropriate to legal considerations. For example, Colorado is a "no fault" divorce jurisdiction, and positions based on incidents that offend your moral values will probably not be considered in determining a fair settlement. If you have trouble accepting the conclusion that your beliefs cannot be supported by law, avoid the temptation to spend expensive time arguing with your attorney. Instead, either seek a second opinion, or work through your frustrations with a counselor. Even where your interests can be considered, not all of them will be strictly relevant to the legal issues. However, if your desires and beliefs about fairness remain unspoken, you will arrive at an outcome unrelated to your interests, without knowing why. This results in a sense of helplessness, which prevents effective movement into a new life after the divorce. In addition, by clearly presenting your perspective, you can obtain a successful settlement that is consistent with the law, but addresses your specific goals. In one case, a client felt strongly that it was fair to give her spouse "credit" for actions that would not be considered in the legal context. When her belief was communicated, her spouse reciprocated by offering a generous division of property, while he had previously been very resistant to a fair sharing. Their settlement fit the needs and abilities of both parties and was achieved with a minimum of expense and rancor. When you do mediate, choose mediators who are capable of obtaining true agreement that reflects the interests of both spouses, by eliciting and validating the interests of the less assertive spouse. A mediator skilled in these techniques can also help establish communication, which is necessary if the parties will continue co-parenting their children in the future. Barbara Lavender, PC © 2005 by Barbara Lavender, PC |
