Can I afford to divorce in tough economic times?

January 19th, 2012 by

Tough economic circumstances can make continuing a marriage intolerable. However, some spouses feel that they cannot leave a terrible marriage because it will just cost too much to get divorced. There is no question that waging a nasty war in divorce court will be very expensive. In addition, family court judges must apply the law when deciding cases, which means they cannot devise creative solutions to difficult family economic situations. However, that does not mean separation is not an option for unhappy spouses. It just means that court is not the right choice for resolving family law issues.

Family mediation and collaborative practice are two options for separating couples that have large advantages in tough economic times. Both can allow separated couples to resolve the matters between them for a fraction of the cost of fighting things out in court. An even bigger advantage of family mediation and collaborative practice is that it allows for the parties, with the help of their lawyers, to be much more creative in resolving financial matters. The separating spouses can create a resolution that is fair to both spouses and also reflects the reality of their difficult financial circumstances. Any financial settlement through mediation or collaborative practice must benefit minor children as much or more than a strict application of the Child Support Guidelines. However, aside from that requirement, there are a few other limitations on what terms are possible in a family law settlement. The parties do not have to strictly apply Family Law, in the way that a judge must, in collaborative practice or mediation. However, it is still useful each of them to have a lawyer so that they know that the settlements they are considering is fair and benefits them as much as, although differently than, what a judge would order. (Each party must have independent legal advice for any settlement to be enforced by the court.)

Mediation and collaborative practice allow the parties to tailor a resolution that meets both of their needs. That can include addressing tough financial circumstances. The settlement can put off having some money change hands until times are better. Those settlements can also involve having debts or assets change hands in a way that the court cannot order, even though it makes more financial sense for the parties. There can be many other creative ways to address each spouse’s needs depending on their particular circumstances.

Avoiding the cost of a nasty court battle leaves more money available for the children, to say nothing of avoiding the emotional cost of a war between parents. However, both parties must choose to use either collaborative practice or mediation. One spouse cannot require the other spouse to use one of those options. If one spouse is going to be uncooperative, then court may be the only possibility. However, if both spouses are going to be sensible, then they can get divorced, including resolving all of the issues between them, for a minimum cost and create a new financial reality for the family that makes the most money possible available for everyone.


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