How to Avoid Financial Distress in Divorce – Written by Charles Fleck, Schiller DuCanto & Fleck LLP

In today’s economic environment, it is a very difficult decision to opt for a divorce and end a dysfunctional relationship.  Today there can be enough stress in people’s lives to make them hesitant to compound that problem by adding the stress of a divorce.  However, there is a proven and slowly growing alternative to the traditional adversarial divorce. More frequently in today’s economy, people are pursuing alternative resolutions such as mediation.

Mediation is not for everyone. It requires two people who still respect one another, who can communicate without inserting emotional baggage into the conversation, and who share the common goal of maintaining a productive relationship for the benefit of their own future and their children’s. One usually hears the horror stories of bad divorces, but there are also many successful divorces. As a former judge, I presided over hundreds of cases.  As a lawyer, I have represented hundreds of clients. Over the years, I came to realize that, in most cases, there is good in people that a qualified mediator can build on.

In mediation, spouses meet with a qualified neutral professional, usually an experienced attorney, to discuss their problems, exchange financial information, and work with the mediator to attain their own settlement without involvement of the courts, retained experts, accountants, or litigious attorneys. It takes special people to mediate their differences in a positive manner so that their settlement suggestions constructively build a successful resolution.  In this way, the parties avoid prolong conflict and extensive costs.

There are many benefits to mediation. Mediation costs less than litigation. The parties pay a mediator to help work out a settlement, and then the parties’ lawyers bring the settlement to court for its approval and for the actual divorce. Mediation is not emotionally wrenching like litigation, and therefore, it is less painful and less complicated. The family is the winner, especially the children. In mediation, the parties are in control of their own destiny. This control is not entrusted or delegated to a litigator or some over-worked judge. If there is an imbalance of power, the mediator ensures that there is a level playing field and that the power between the couple is equalized if it is apparent that one spouse has a stronger personality or has greater knowledge of the finances. Mediation takes less time than litigation. A complicated divorce could be litigated over the course of years. Mediation usually takes a matter of months.

If spouses are civil and mindful of the each other’s needs, and their goal is a fair settlement coupled with closure, mediation is a valuable alternative. However, if a spouse is unreasonable, over-reaching, unstable, addicted to controlled substances, or in pursuit of a scorched earth policy, mediation may not be the best course. So if mediation does not suit the parties’ goals or if it fails, the court-house always awaits.

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