By Mark B. Baer for MariaShriver.com
Families come in all shapes and sizes. While many may define a “perfect” family as one in which the parents are married and in love with each other, this tends to be the exception more than the rule.
If you’re thinking of making a change in your family dynamic and splitting with your spouse, there are a few key factors to keep in mind.
Like it or not, if there are children of the relationship (regardless of their age), the family still exists after the relationship ends. The manner in which you end a relationship determines whether your family will be functional or dysfunctional from that day forward.
Divorce is not a game and children are not pawns. Parents need to understand that what they do, say and how they act toward the other parent with or without the assistance of their attorneys has long-term consequences.
The selection of an attorney is the most significant factor in determining how a case will proceed. In addition to competency, the attorney’s personality and overall philosophy with regard to family law are of great importance.
People need to consult with “competent and caring” family law attorneys. Assertiveness should be part of their competency. However, do not seek out lawyers that describe themselves as “sharks,” “pit bulls” or “aggressive.” Setting that tone typically leads to suboptimal results, can destroy families and costs a great deal of money in the process.
When people think of divorce, they typically think of litigation, but there are other more “do it yourself” (DIY) options. Other available processes are: mediation, collaborative divorce, negotiation, arbitration (depending upon the issues involved), and private judging (if permitted in your particular jurisdiction). Unfortunately, family law is not spandex and there is no “one-size-fits-all” solution. Before making a decision regarding process, people should consider the following:
A) Litigation is an adversarial process in which both parties play to “win.” An unfortunate byproduct of litigation is that it exacerbates the level of conflict, increases distrust and breeds paranoia. Try to resolve family matters in a process that is instead designed to reduce the level of conflict and rebuild trust.
B) The term “mediation” is vague and the process is unregulated in most places. Mediation could be evaluative, facilitative or transformative. Also, a person can practice as a ‘mediator’ without ever having received any formal training. It is therefore strongly advised that you do your homework before selecting a mediator.
C) Collaborative divorce is an interdisciplinary team approach. In addition to the parties themselves, the team consists of attorneys, mental health, and financial professionals. Collaborative teams are no different from any other team in that they are only as strong as their weakest member. Collaboration only works when the professionals involved are like-minded individuals who actually trust one another.
D) Lawyers serve a necessary and useful purpose in family law matters. For one thing, they warn of unforeseen “what- ifs.” Furthermore, words have meaning and the difference between “may” and “shall” could substantially change the meaning of a provision. Lawyers are wordsmiths in that regard. Moreover, divorce is a legal process and should be handled as such.
E) Unless a matter is decided by a judge or arbitrator, the couple involved ultimately makes the decisions. According to a new study conducted at UC Davis, people had a clear preference for mediation and other forms of consensual dispute resolution over those forms of dispute resolution in which they relinquished their decision-making authority.