Friendly Divorce?

 

by Beth Brown Ornstein
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Ask anyone who has been through it.  Even if husband and wife are on friendly terms and in agreement about the decision to divorce, the process of dissolving the marriage is rarely predictable, and it often feels like an emotional roller coaster.

 

Why is it so hard? Husband and wife must address issues that have significant financial, legal, and emotional impact for the present and future for themselves and their children.  Will one spouse continue to live in the family home? Will each parent be financially capable of providing an appropriate home for the children?  How will decisions be made in the future for education or activities for a child who is now a toddler? How will the children’s education be funded?  What happens if one spouse wants to relocate in the future?  What will happen upon retirement?

 

It is difficult for many people to inform themselves about the issues and speak directly with a spouse to resolve potential conflicts about major questions or details. It sometimes feels better to try to keep the peace and avoid these difficult questions and potential confrontations. Avoidance can result in mounting frustration for both spouses, failure to address important details in a separation agreement or parenting plan, high conflict litigation, and/or continuing conflict after the divorce.

 

Imagine this: You and your spouse have two children in elementary school. You want your children to eat healthy meals, but you are concerned that your spouse feeds them too much junk food.  This seems minor in the grand scheme of things, but your children’s health is important to you.  How will you deal with this issue? How will you keep it from affecting your attitude toward your spouse in dealing with all the other issues?

 

Mediation is often a good option for divorcing couples who want to address difficult issues while maintaining a generally amicable relationship.  In mediation, the husband and wife meet in a neutral setting away from their children to discuss issues that must be decided.  The mediator does not take sides or make decisions, but works with the participants to identify and address emotional, financial, and other concerns and interests. The process generally begins with the mediator helping the husband and wife listen to each other.  The mediator can allow husband and wife acknowledge the other’s emotional concerns and help them work together to develop practical ways to meet these and other interests.  The mediation process thus promotes development of communication techniques that the couple can continue to use on their own during the dissolution process or after the divorce.

 

Returning to the healthy food example, the mediation process can provide a setting where you feel comfortable raising your concern with your spouse.  The mediator will help keep you focused on the best interests of the children in making decisions that affect the children. Through the mediation, you and your spouse might agree that you have a common interest in promoting the health of your children. You can then build on your agreement to explore options for ensuring that their health needs are met when they are with either of you.

 

In many cases, the success of the mediation process is affected by whether or not the participants take advantage of other professional resources. The mediator does not provide legal, tax, or therapeutic advice, but can often advise parties when they need such professional assistance.  For instance, a spouse involved in mediation may not be aware of or understand the tax implications of a proposal for maintenance (similar to alimony in other states) with annual changes in the amount of the payment. The mediator can refer the spouse to an attorney or tax advisor to obtain the necessary advice.  Attorneys in Colorado are permitted to provide legal advice with respect to limited matters without representing the client in all aspects of the divorce proceeding.

 

Frequently, a spouse expresses the concern that by consulting an attorney he or she will undermine an amicable process and make the spouse angry.  I always advise my mediation clients that they cannot make informed decisions without understanding their legal rights and without understanding, as much as possible, the ramifications, legal and otherwise, of their decisions.  In the long run, both spouses benefit when both make informed decisions. For example, a wife might agree to waive rights to the husband’s retirement plan.  She will feel better about this decision if she knows up-front that she had a right to share in the plan than if she learns about it after the divorce is final.  In the latter case she is likely to feel that she has been cheated.  She will probably harbor continuing resentment and distrust in future communications with the husband.

 

            Prepared with essential information, divorcing couples can use mediation to navigate the often unpredictable and rocky dissolution process.  Through mediation, they can work cordially with each other to make informed decisions that are fair and in the best interests of their children.  They might even be friendly!

 

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Beth Brown Ornstein, J.D., mediates family and civil disputes through the Colorado Mediation Center, LLC.  She is the former president of the Boulder Chapter of the Colorado Council of Mediators and Mediation Organizations.