Divorce is painful. Marriage is a contract between two individuals but, unlike other contracts, it is not an “arms’ length” arrangement; i.e., divorce involves intense emotions which are often difficult to conceal. A break-up of the family unit is particularly hard on the children. Children who have always thought of their parents as all one word — “Mom-n-Dad” — are now compelled to think of them as individuals; i.e., “Mom, Dad”; or, even worse, led to believe that they must choose; i.e., Mom or Dad.
In Pennsylvania, the rules relating to the three major areas of family law are based upon principles of fairness. Support calculations take into consideration the net monthly incomes of both parents; the standard in custody determinations is the best interests of the child. The law allows for divorce without attributing blame (i.e., “no-fault”), and distributes marital assets and liabilities equitably, not necessarily equally (i.e., again, based upon principles of fairness – assuming, that is, that the court must become actively involved in support, custody, equitable distribution of marital property and/or divorce battles between the parties).
More importantly, court battles take a huge toll, both financially and emotionally. There are, however, several options available to separating / divorcing parties who truly wish to lessen this toll and, above all, to keep the children out of the fray.
Divorce: The Negotiated Agreement
This method works best if each party is represented by legal counsel. Each attorney is, of course, an advocate for his/her client. Familiar with the law and the court’s “thinking”, family law attorneys are in the best position to advise you and your spouse as to the likely outcome of a court battle and can, therefore, assist in the negotiation of an agreement approximating this outcome without the expense of litigation.
Try to keep extreme emotions out of the process as much as possible. Individual counseling can assist you with the emotional skills and tools you need to see you through to conclusion. Never go to court because “it is the principle of the thing.” If you must go to court, limit your expense by choosing your battles wisely.
If your goal is to remain amicable throughout the divorce process, divorce mediation may be a viable option. The mediator is a neutral party trained to assist couples with the issues particular to their divorce. The mediator is not an advocate for, and will not “side with”, either party; rather, the role of the mediator is to assist communication between the parties. The mediator does this by assuring that each party is allowed to speak without interruption. If the mediator picks up on a key issue, he or she may ask to have the statement repeated or explained for the benefit of both parties, or may ask questions so that the point being made is clarified.
Like family law attorneys, a mediator trained in family law issues is familiar with the law and the court’s “thinking” and can, therefore, assist you and your spouse with good decisions reached by mutual agreement. The result of successful mediation is a Memorandum of Understanding (“MOU”). This is neither a contract nor a court order, and is not enforceable by itself. At the very least, the terms of the MOU must be put into an agreement signed by you and your spouse, and you may be required to sign a consent order.
Collaborative divorce is a fairly new concept in Pennsylvania. In a “collaborative divorce”, you and your spouse must each retain a lawyer specially trained in the collaborative divorce process. You must each agree, in writing, to do everything collaboratively and cooperatively; your lawyers must withdraw if no agreement is reached. You, your spouse and your attorneys then commence a series of “four-way meetings” in a good faith attempt to reach reasonable resolution of your differences. Other professionals, such as therapists or financial experts – also specially trained – may be brought in to help you work through impasses. Absolutely no court intervention is permitted. In fact, if either of you goes to court, or even threatens to do so, the process comes to an abrupt halt and both attorneys are disqualified from any further involvement in your case.
However you and your spouse choose to proceed, you are best served if you keep the lines of communication open and cooperate with each other as much as possible. The result will be less stress and less expense.