The Three Phases of Divorce

The Three Phases of Divorce

When you look at divorce from a 30,000 ft level, there are three distinct stages: The decision to get divorced, the decision on the negotiation process for the divorce, and finally negotiating the divorce. We’ve found that proper attention to these phases will genuinely impact whether or not you will have an efficient and effective divorce.

We define efficiency as the right amount of time and the least amount of money spent on legal fees, etc. We define effectiveness as providing not only the greatest value, but resulting in meaningful negotiations, that yield the best possible post-divorce relationship. The latter is particularly important for families with children because you will have to co-parent for the rest of your lives and negotiate support for the children until each child turns 21 (in New York State).

We tell people prior to beginning the divorce process to focus on the future. Imagining your future is what will successfully carry you through this daunting process = and will guide you in understanding what is most important in your divorce negotiations. Removing conflict and concentrating on your future will help sharpen and highlight the things that are most important to you.

Think about an important future event like your child’s graduation or wedding day.  What do you want that day to look like from their perspective?  Is it a day where they are thankful and happy because their parents are amicable and can get along – therefore focused on offering love, appreciation and support? Or conversely, is it a day where your child has apprehension and anxiety for weeks leading up to the event, worried sick about keeping their parents apart so as not to ruin their special day? It means a great deal to us when we hear feedback from clients who ended up having amicable outcomes and were indeed still able to share those important events and memories with their children.

The Decision to get divorced…

Most people do not arrive at this decision simultaneously.  And even in their own journey in coming to the decision, each spouse will have to endure their own stage of divorce grief.  –Throughout the divorce grief process clients talk about recurring thoughts such as, “do I really want to do this?” or “is this really going to happen?”  Many struggle with feelings like – “When I got married, I signed up for life. I took those vows.  But this isn’t working.”  The reconciliation of those two very opposite ended ideals causes a great deal of internal conflict. And then there are a host of external societal, economic, familial and religious pressures that take their toll of the grieving process.  If you are caught in this middle “on the fence” phase, there are clearly a host of counseling professionals that should be considered for you, your spouse and children if necessary.

Clients constantly tell us that reaching the decision to get divorced is their light switch moment, where they go from wondering “should I?” “could I?” – to the sudden realization that they are done and divorce is a certainty.  The focus immediately turns to “how can I do this quickly, most efficiently and cost effectively as possible.  Once the light switch moment has occurred, that is the ideal time to find the right legal professional to help you.  Lawyers can help in this stage because both parties rarely have the light switch moment at the same time.  The second person, may be on the same page, going through the same process, but usually they are in a different place and at a different pace. If you’ve made that decision and the light switch goes off, you then have to appropriately take stock as to where your spouse is at, because how you interact with he or she, once you have made your decision, particularly if they haven’t yet, will highly impact how much cost you will incur and how painful the process will be. I always appreciate it when a client contacts me at this stage in the first process as we can help them understand how to effectively meet their spouse where they are at and lead them to the second stage of the divorce process.

Once you have reached that critical light switch point, it is in your best interest to act as soon as possible. That’s one of the reason’s complimentary consultations are so valuable.  They help you assess your current situation, how to process that information and how to communicate that to your spouse.  This leads to the next stage…

The Process Choice by which you will choose to negotiate the divorce…

The process choice phase entails deciding on what divorce process you will employ to negotiate the terms of your separation agreement with specifics related to the division of assets, child custody details, timelines, etc.

On one end of the spectrum is what we call the kitchen table divorce, where you and your spouse sit down, negotiate all the terms of your agreement on your own.  This includes a co-parenting plan, how to divide assets/debts, and a determination of child support and/or spousal maintenance.  Once you have completed your kitchen table negotiations your legal team can prepare the legal documents for your signature and ultimate filing with the court.  On the other end of the spectrum is traditional Litigation which is the most time consuming, most attorney supported and most expensive.  It involves both sides having attorney representation, each party working up a statement of net worth followed by a negotiation for equitable distribution. Should the negotiations break down, a judge will become involved and provide a glimpse of what could happen should the case go to trial.  Going to trail is a last resort and is in everyone’s interest to avoid as it could cost tens of thousands of dollars – to even hundreds of thousands in the most extreme cases.

Another option you have is Mediation. This is where you hire one professional to serve as a neutral guide who doesn’t represent either party but rather leads you through the process and highlights what the law says.  A mediator will help both of you through conflict and help you identify areas of compromise and encourage discussion and interest-based negotiation with a focus on each party’s broad goals. A mediator cannot provide legal advice and will not tell you what you should do.  You always have the option of hiring an attorney to consult with during mediation.  However, the added cost of the attorney may suggest that the collaborative law process is more suited for your situation.

The third option you have for process negotiation is called Collaborative Law.  This is where each party hires a collaboratively trained and philosophically like-minded attorney, not to be adversarial, but rather to collaborate with you and help you and your spouse focus on your interests, your goals and your future. The attorneys and neutral team will help equally distribute assets/debts and draft a co-parenting plan in a safe business like setting outside of the courtroom.  A collaborative best practice is to include neutral practitioners such as a mediator to help facilitate the process, a child specialist to guide you through the co-parenting decisions and a financial neutral to help in complex financial cases with high assets, business or difficult cashflow issues. Although there are more professionals in this process, each has a specific role and purpose which results in greater efficiencies than litigation and will result in less overall expense and a better outcome than traditional litigation.

The Division of Assets and developing a co-parenting plan for the support of minor children…

The division of assets and debt is a result of negotiations. From the day you officially got married to now everything that you have generated with your spouse from assets to debt are joint – 50% is yours and 50% belongs to your spouse. Making these decisions quickly but thoughtfully, as well as keeping them reasonable can certainly help streamline the divorce process – cutting down on friction, but also the time and expense of the process.

Determining what’s best for your children at the end of the process is often too late.  You should be thinking about them before you begin the process and keeping them in mind throughout. Custody and co-parenting time decisions are unique to each family, so a parenting plan that works well for one family, may not work for another. Because collaborative law and mediation keep you out of the courtroom, they are often the most amicable pathways to consider when children are involved. Co-parenting and visitation decisions are made collectively by each parent, based on an understanding and the best interest of the kids.

If you follow and invest in the details of these three phases of divorce correctly, you can assure the best possible outcome: having the most cordial relationship possible with your ex-spouse, spending the most reasonable amount of money possible for the process, and in a way that makes the most sense for you and your family.  Feeling normal is what everyone aspires to in chaotic times.  Wesley Clark and Peshkin will help you get there.

Kevin Clark is a partner with Wesley, Clark and Peshkin, one of New York State’s most experienced family law firms – exclusively focusing on divorce litigation, collaborative law and mediation.