The Smart Divorce® Weblog

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What are the dispute resolutions?

You have choices and options to arrive at your separation agreement. A smart divorce means doing the research and gaining the understanding of these options so that you are making your decisions with confidence.

Do it yourself

 

This is the situation when separating couples to try reach an agreement without legal counsel. When I conducted my research for my book, The Smart Divorce, not one lawyer recommended this option. They didn’t support this option because they felt it is imperative that people understand their rights in terms of what they are entitled to and financial responsibilities and obligations with regard to spousal support and child support. For example, you could be giving away or not getting your most important assets; you might not be doing what is in the family’s best interest. If you do decide to go this route, you should at least consult with a lawyer first to get independent legal advice to understand your rights.

 

Negotiation

Think of negotiation as taking your wish list regarding how you divide your assets and what your parenting responsibilities should be and use this list as a starting point for what you end up with. It’s me and my lawyer versus you and your lawyer finding a compromise– all with the goal of reaching an acceptable middle ground. It’s me versus you with our lawyers beside us. Usually, we’re both trying to get as much as possible.

Now if you have to go to court, negotiation takes place too. The purpose of negotiation here is using it to avoid trial. When people file lawsuits there’s an expectation that there will be some maneuvering and bargaining and eventually a settlement will occur rather than full blown court with trial. The typical pattern is to use the threat of trial to get people to bargain and stay out of court.

 

Mediation

Mediation is using a mediator – It’s using the help of a neutral third party to help the divorcing couple reach a separation agreement together. A mediator is the problem solver helping the couple arrive at an agreement by helping them communicate with each other– a good mediator will help the couple identify issues and explore choices that they hadn’t thought of on their own.

Another benefit is that for some couples mediation is more cost effective because they are splitting the cost of a mediator, rather than paying hours separately with their individual lawyers. Many lawyers and clients like it because it gives both sides more control over the final outcome, but it does require that you be willing to work together, there is honesty and full disclosure about the finances.

 

A mediator can be a lawyer or a mental health professional. Most lawyers prefer that when you are mediating financial matters that your mediator be a lawyer.

Collaborative family law

 

The concept is that the lawyers work strictly toward settlement. Clients and their lawyers sign a contract in which they agree not to go to court, and to provide full and complete financial disclosure. The purpose of collaborative law is to create an environment in which the separating couple feels safe, in which both parties feel that they are able to make informed decisions about their own destinies, and in which they can work constructively despite their fears, anger, and feelings of revenge.

The lawyers fulfill their traditional role of advising their own clients on how the law applies to their individual situations. But they also help their clients to reframe their thinking–to develop goals as opposed to taking positions, and to make good and ethical choices. If either client wishes to end the collaborative process and go to court, both lawyers and other members of their firms must remove themselves from the case.

Arbitration

Arbitration is much like litigation in that you go to court in a sense, but it is outside of a courtroom. It is a private process. The divorcing spouses together with their lawyers pick a decision maker, who is usually a retired judge or senior lawyer with family law experience.

What happens in arbitration is that the decision being debated between the couple is imposed by the arbitrator. Unlike mediation, no one helps the couple come to an agreement; the decision is made for them. And, usually, if you don’t like the decision, it can’t be appealed which means, you can’t argue it out again for the decision maker to change his or her mind.

Litigation

I’m not saving the best for last; this is last because litigation is usually the option of last resort. Going to court. It’s emotionally difficult and financially, very expensive.

Who remembers Perry Mason?– when you’re up on the stand and your lawyer is asking lots of questions and all of a sudden there is this aha moment by the judge and yes, it’s determined you are right and the other side is wrong and justice is served. It’s his word against hers and the battle starts from there. The lawyers try to poke holes in your persona showing that you are unfit. That’s why it is called the adversarial process. There is one winner, and one loser. It’s not a win – win situation. It’s a war and there are distinct sides.

Like arbitration, the decision is made by a third party. Unlike arbitration, you can’t pick your decision maker and the judge doesn’t always have family law experience. Another difference is that arbitration is private, going to court is public. Being public means that there is a public record of the dispute.

For a more comprehensive analysis of the dispute resolutions readThe Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers Counselors and Other Experts (available wherever books are sold)


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Developing Your Separation Agreement

Considering All the Divorce Options

Did you know that there are options to arriving at your separation agreement? Going into my divorce, I didn’t realize there were any options. Maybe I watched too much TV, but my perception was that everyone went to court and litigated–went to trial before a judge. I was completely wrong. I didn’t understand that litigation is not the preferred method of resolution. All lawyers would agree that in most situations, it is the method of last resort; it usually signals a breakdown in negotiations outside the courtroom. The other options besides litigation are called alternative dispute resolutions, or ADRs.

The best-practices thinking is that ADR ought to mean

“appropriate dispute resolution,”

of which litigation is one choice.

Understanding each ADR process is vitally important. Although no one should walk into a lawyer’s office and immediately say, “I want dispute resolution X”–lawyers evaluate which dispute resolution process to pursue based on the nature of the problems and issues–being aware of your choices can help you maintain control and contribute to making decisions with confidence.

Which option provides the best outcome?

All of these modalities can produce either a good outcome or a bad one. Mediation, arbitration, trial–nothing about them, alone, predicts either a good or bad outcome. All carry variables such as a good judge or a bad judge, a good mediator or a bad mediator, a good lawyer or a bad lawyer.

There are five ways to come up with your separation agreement without going to court. You should be well informed about these when considering the best way to arrive at your separation agreement. Why does this matter? It matters because it’s not always about going to court.

The truth is, there is no such thing as revenge in divorce, the only thing you will get are legal bills.

What are your choices and options?

  • Do-it-yourself
  • Negotiation
  • Mediation
  • Collaborative family law
  • Arbitration
  • Litigation

Which Option Is Right for You?

Even choosing which dispute resolution option to take can become a fight for a divorcing couple. Don’t invest yourself in particular outcomes. Your goal should be as reasonable a dissolution of your marriage as possible under the circumstances. You do not have–and you will not be able to get–complete control of the options or of how the other side acts within them.

A good lawyer will emphasize that it is extremely unlikely that anyone is going to walk away having won completely. I’ve been told by many lawyers that they make most of their money from clients who are stubborn. But many lawyers also say that they would accept slightly lower fees for easier clients, even if they have to take on more clients to make up the difference.

Information about dispute resolutions and more is covered far more comprehensively in The Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers, Counselors and Other Experts. Available wherever books are sold, amazon.com, amazon.ca, barnesandnoble.com and many other webseller book sites.


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Keeping your sanity during the insanity

Staying Sane Throughout Divorce

Divorce is a process with a colossal emotional component. If you’re not careful to deal with the emotions separately and outside of the legal process you are in danger of making decisions you will later come to regret.

The kaleidoscope of emotions

The emotions can be intense and vary from person to person. What you may be feeling is fear, anger, rage, sadness, guilt, shock, frustration and even relief. I remember, as I went through my divorce, wanting to desperately piece my world back together and wanted to numb the pain. But of course, I later came to realize that if you don’t deal with the pain of your emotions, somewhere later, the emotions will catch up to you and become your emotional baggage.

 

Divorce has become so common today that

people underestimate how powerful an

experience it truly is

People don’t know how to react to divorcing people. There are no rituals or customs associated with mourning the loss of a marriage. There are all sorts of customs associated with losing a loved one, but how do you mourn the loss of a marriage? Without saving cavalier or glib, there are some ideas which don’t sound so bad. I’m starting to hear of people developing their own little healing ceremonies by throwing divorce parties, sending out separation announcements, burying their wedding band, or running away going on a little exotic vacation and so on. But what you also need to do is recognize that you are grieving. Grief is not a mental disorder; it is a natural, if painful, emotion that needs to be worked through!

 

Managing the grief

Grief presents an opportunity to make important choices and think about the life you want to lead. There is an incredible amount of emotional work and healing that needs to be done when you’re grieving, especially during the first year of tow of going through a divorce and separation.

Ways to feel better

If you behave passively, like a leaf that is simply tossed this way and that by the wind, you are taking away your own freedom to move forward with your life. A smart divorce requires you to do some work, not be passive. Once you truly accept this, you will have set your feet firmly on a path that can enrich you rather than diminish you.

Take charge

  • Give yourself the opportunity to explore and consciously make choices about the life you want to lead.
  • Envision what you would like life to look like when you are ready to start moving on, and think about what you need to do to get there.
  • Take care of yourself both emotionally and physically.
  • Emotionally: develop your support network of friends, family, clergy parenting groups, support groups and perhaps a therapist.
  • Physically: Eat right and exercise. Try as hard as you can to lead a healthy “balanced” life.
  • Make time for yourself – do something which makes you happy.


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Making it through celebrations

Making it Through Celebrations

Happy, and On Your Own Terms

One of the most harrowing twists and turns of the emotional roller coaster ride called separation and divorce is the first year of celebrating the holidays uncoupled. In fact, there is so much uncertainty and fear over this time that some would rather skip it altogether.

We often put ourselves under incredible pressure to celebrate holidays the traditional route and often times, it just isn’t possible. To cap it off, we don’t necessarily want to go that route, but feel societal pressure to fit in. Christmas, New Year’s, Easter, Passover, Valentines Day, our birthday, and the various other special days, can wreak havoc with our emotions especially if we find ourselves alone. While some of these holidays have religious significance others seem to be just a reason for a Hallmark card, yet we feel anxious to partake and be like everyone else.

Who says you have to celebrate those days the traditional route or the way you celebrated when you were married? If you find yourself alone, create new meaning for these celebrations and enjoy them on your own terms. Here are some tips to get you through these celebrations.

Here are tips to help you get through the holidays if you find yourself in this situation.

  • Create new traditions. If the old traditions are too painful to follow, let them go. Instead of trying to re-create the past, create your own positive future.
  • Throw your own party and invite friends or family who have nowhere to go during this time.
  • Make a special effort to take care of yourself physically and emotionally. Don’t try drowning your sorrows with alcohol or food. Doing anything to excess when you are sad or worried is rarely a smart move.
  • Be good to yourself. Go for a manicure or massage, buy a great CD, catch up on your favorite hobby. Treat yourself the way you would treat a good friend or family member.
  • If you are feeling overwhelmed and vulnerable, speak with a trusted friend, therapist or someone in your support group.
  • Plan ahead. If it looks like you’re going to be spending the time on your own, find an interesting activity or a place to travel so you can be with other people.
  • Surround yourself with people, whether from your support network, your family, your church or synagogue. You may even be able to attend a special support group holiday function.
  • Contemplate how you would like your life to look like post-divorce and write down what you need to do to get there. Start doing one of those things now.
  • Stay in control by making lists of what you need to do and checking each item off as you accomplish it.
  • Use any time alone to do the things you’ve been putting off — catching up on paperwork; catching up on sleep; reading the great book that’s been sitting unopened for weeks or months; calling the friend you’ve been meaning to reconnect with.
  • If putting on a dinner or party in the family home doesn’t feel right, try doing something for others off site. For example, you could visit a retirement home and read to those whose families can’t be with them during the holidays.
  • Continue to make the holidays special for your children. Include them in developing new traditions. Ask them how they would like to celebrate.
  • Plan ahead how your children are going to spend the holidays. Avoid the stress of figuring things out last minute. This will give you a sense of comfort, relief and control.
  • Be creative and flexible. If your children are not celebrating the holidays with you, think about making another day during holiday time a special day together.
  • If your children are going to be with their other parent, phone them and wish them a happy holiday. Let them know that you are thinking about them.
  • Don’t make your children feel that they have to take care of you during this special time. Send them the message that the holidays are a special time and you want them to enjoy themselves.
  • Spare the occasional good thought for your ex. Your marriage likely had some good moments. Remembering those times occasionally will help you lift yourself out of your bitterness about your current situation.


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It’s my birthday and I’ll party if I want to

It’s my birthday and I’ll party if I want to…….

Unlike Lesley Gore, who recorded the song, It’s My Party – about the lead character’s birthday party which did not turn out to be the happy occasion she thought it would be she cried, cried, cried. Why turn your birthday or any celebration into a reason for tears.

Celebrate the fact that you made it through another year. Don’t wait for someone to make it special for you, make it special for yourself

  • Throw your own party; celebrate with your children, friends or extended family.
  • That adventure you were thinking about, go a head, give yourself permission to finally do it.
  • Buy yourself something really fabulous.
  • Find a way to enjoy yourself and make a special effort to create your own happiness and joy.

I was determined to make my 45th birthday extraordinary. It looked to me as if all my friends celebrated their birthday by being whisked away by their partner to some marvelous destination or received a fancy bauble with major bling. Wanting to jump aboard that birthday express, I decided to create my own marvelous adventure. Not having someone special in my life, I felt special anyhow and whisked myself away on an unforgettable journey. I decided to mix my love of adventure with a passion for good food and pampering.

For six months prior to my birthday I sweated away twice a week spinning at the gym, preparing myself for the most delicious trip. I signed on for a bike trip which rode through the Napa and Sonoma Valley, called a solo adventure – not a singles trip, not for the lonely, a tour for those that were traveling on their own — incredible, that was perfect. Spas, great wines, beautiful vineyards, fine food and biking, how much more ideal could it be?!! It seems like a dream now, how I found the nerve to think out of the box and do something on my own – but, I enjoyed the ride of my life. It was an unbelievable experience, story and adventure.

I recommend celebrating your birthday

by realizing your dreams.


Achieving your goals and living out your dreams that is the best gift you can give yourself. It’s life affirming, just what you need to celebrate your birthday.

Today, I make my birthday special by throwing my own little birthday party celebrating with my children. I take them to an event that I know we will all enjoy (ok, maybe I’m selfish this one time and I enjoy it the most), we go to the theatre, a new restaurant; I’m always trying something new. But, I have two rules which they have to abide by, 1 – they can’t complain and 2- they have to make me a birthday card. It’s an adventure for us all and a new experience for them. If I’m lucky enough to have a few extra dollars, I buy myself something special too, a pair of earrings, bracelet or a massage.

I’ve come a long way baby and I’m worth it.


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The Two Sides of Divorce

Did you know that divorce is a process?

di·vorce (dĭ-vôrs′, -vōrs′) n. the legal dissolution of a marriage; v. to sever the marital relationship with a spouse by a judgment or decree of divorce.

If divorce were as straightforward as the dictionary definition, the process would be a whole lot easier.

Couples, children, and extended families could carry on with their lives as if nothing much had changed. The “legal dissolution” could involve collegial discussions in lawyers’ boardrooms followed by the signing of papers, a handshake, and best wishes all around. Actually, some lawyers and judges favor the dictionary definition. “Treat your divorce as a business transaction,” they urge couples who come to see them. There’s a lot of wisdom in this piece of advice, if it is applied to the legal side of divorce. But this view neglects the emotional side of divorce. It’s as if they’re saying, “Business partnerships . . . marriage partnerships . . . what’s the difference?”

Most people who have gone through a divorce–and most lawyers and judges, too–will tell you that the dictionary definition captures only one small part of the reality of divorce.

Divorce is an extremely demanding and painful

experience riddled with complications

When divorce isn’t tragic, it’s at least extremely disappointing. A relationship that was launched in a hopeful wedding ceremony followed by candlelight and the celebratory clinking of glasses has turned into a fire fueled by fear, anger, grief, and guilt.

 

I know, having gone through divorce myself, that it is both a business transaction (which I certainly didn’t realize at the time) and a time of deep emotional distress (which I experienced all too well). And while it would be really nice if the two elements could be handled one after the other–you could spend a few years dealing with the emotional issues, and then, heart and head clear, go through the legal process–I also know that emotions and legal processes cannot be clinically separated.


But the ultimate challenge of divorce is precisely this: the legal issues come up at the beginning of the process, when you’re least able to deal with them objectively.

Managing the “emotional” and the “legal” divorce

A smart divorce is one in which you accept that:

– both the emotional and legal sides of divorce are real and valid

you have to go through both, and pretty much at the same time

emotions and the legal process cannot be perfectly sealed off from each other

To get a smart divorce, you have to understand how to keep the “two divorces”–the emotional divorce and the legal divorce–as separate as possible. Emotions should be kept out of the legal proceedings as much as possible. Letting your emotions become part of your legal decision-making process will ratchet up your legal costs, cause you to make faulty decisions, prolong the divorce process, and hold everyone back–yourself included–from moving on to a rosier future.


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How a Divorce Consultant Can Help You

 

HOW A DIVORCE CONSULTANT CAN

HELP YOU THROUGH THE PROCESS

 

Managing a divorce truly is a process. However, you may not know what this process is, how to proceed, and how to process information and counsel along the way to make better decisions. After all, you probably did not approach your marriage with the expectation that you might some day require an exit plan.

Many lawyers would agree that the divorce process should be handled like a business transaction. Yet, it is difficult during this ‘transaction’ to separate out your emotions which are probably at high tide from the important decisions that will affect you and your children for many years to come. It can also be difficult to get the divorce process started or to know how to choose a lawyer, assess if your lawyer is right for you, select other experts such as accountants, therapists and parenting experts, work cost effectively with legal counsel, and ensure you put your children’s best interests first. All of these are areas where a divorce consultant can be very helpful to you.

The role of a divorce consultant is to help you navigate the divorce process so that you can better focus on what needs to be done while also reducing the complexity and costs of divorce. The goal is to assist you in making decisions with confidence by providing the research and education you need to work more effectively with your divorce team.

A divorce consultant is not a substitute for the important roles of lawyer or therapist. However, a divorce consultant can play a vital role in the divorce process. This includes helping people to understand what to expect, providing a basic knowledge of the dispute resolutions, and ultimately to be better prepared and more confident. Working with a divorce consultant is short term and usually consists of one to three sessions.

Some of the specific objectives of a

Divorce Consultant are to help you:

understand the divorce dispute resolutions available

interview and choose the right divorce lawyer

ask the right questions of legal counsel and experts

know what financial and background information to bring to your lawyer

organize and manage your divorce file

assess what experts you might want to add to your divorce team

access referrals to lawyers, therapists, mediators, accountants and financial experts, organizations, literature

understand the emotional turmoil

Understanding Dispute Resolutions

There are alternatives to court that you need to be aware of and to consider when looking for legal counsel. Having a basic understanding of what these options are will assist you in choosing the right process and the right lawyer for you. A divorce consultant can help you to better understand and sort through the various alternative dispute resolutions such as negotiation, mediation, arbitration and Collaborative Practice.

Finding a lawyer

This is one of the most important decisions you will make in your divorce. You need to make the time and effort to find the right person for you. A divorce consultant can help you to understand the consultation process and can provide guidance and referrals to assist you with your search.

How a Divorce Consultant Can Help You Through the Process, from Divorce Choices
by Deborah Moskovitch, © 2008