Which Divorce Process Works for You?

For those who have decided to formally end to their marriage, there remains the question as to HOW. All processes operate within the backdrop of people’s legal rights and responsibilities as well as what could be suitable for the family. People often need help evaluating what process choice might work best given the particular circumstances, goals and temperament of the couple and the family needs.

What process would work for you?

Consider the following:*

  1. What are my long-term and short-term goals as it relates to the divorce? Do I want to preserve family relations? Win at all costs? Be open to compromise in exchange for a quicker resolution?
  2. How might my relationship with my spouse effect a negotiation, opportunities for joint problem solving or a litigated solution?
  3. Do I think my spouse would engage in meaningful negotiations?
  4. What are my personal strengths to allow me to pursue what I believe is an appropriate solution? Am I usually steady and directed in pursuing my goals? Do I have a support system in place? How do I handle risk?
  5. How much control do I want in creating a solution?
  6. What is my best alternative to a negotiated agreement? What information do I not know that is necessary for me to understand? What would be the best way to get that information?
  7. What do I think is a fair outcome and does it align with a realistic assessment of my legal rights and moral beliefs?

Someone may choose litigation if (s)he feels that (s)he is right and the other is unable or unwilling to agree. Litigation is a viable option when attempts at consensus have failed. People also seek the protection and weight of the court when there is a refusal to voluntarily share relevant financial information, an imbalance of power or the possibility of substantial harm if not immediately addressed.

A negotiated settlement can include mediation, the Collaborative processes or direct negotiation through counsel. People chose to participate in negotiations for many reasons, including, to maintain control, focus on a cooperative solution, reduce risk as well as protect against the emotional toll, pace and expense of a litigated solution.

Mediation and the Collaborative process, in particular, which are both confidential processes, provide an opportunity to create a co-created resolution and preserve relationships. As the Court has noted, a properly mediated solution is the “bedrock of today's dispute resolution process.” **

A choice of process is not static. Attorneys at BBNS continually assess and remain alert for openings to expeditiously resolve your divorce so that you focus on restoring your life.

*Of course, there are other considerations that be relevant.

** “Mediation is a not a wave of the future. It is, according to New York's chief judge, a bedrock of today's dispute resolution process: a reasonable process for cost-conscious couple, seeking an alternative to lengthy and expensive litigation to end their marriage. To upend such an agreement should require clear and convincing evidence of a substantial flaw in the process — complete failure of financial disclose, evidence of coercive tactics by a spouse, a biased mediator, a participants' continual complaints during the process — before the agreement is vacated and the couple ordered to return to costly litigation in a re-opened marital dispute.” Irizarry v Hayes, 2020 NY Slip Op 50217
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