One of the first things people want to know when they are seriously thinking about a divorce is – what does the law say? I often hear “I want to be fair, but I don’t know what fair is.” People tend to think the law will determine what is fair. However, when they hear what the law says, it often seems unfair to at least one if not both of them. Even when people want to follow the law, it is not always clear.
In a litigated divorce, when the law is “gray” rather than “black and white,” arguing about how it should be applied or interpreted can drive up costs. In addition, many other variables come in to play, such as – who is the judge, who are the respective attorneys, what is the amount of money available to spend on arguing, etc. Furthermore, issues and circumstances that are really important to people are often deemed irrelevant under the law, so they never get discussed nor argued.
In client-centered processes, like Collaborative divorce or mediation, the law only has as much power as the people choose to give it. Clients get to decide what role the law will play in their divorce. They are free to use it for some purposes and to ignore it for others. Whenever the law is introduced, however, it can feel very powerful and can easily take over. The law can be like an elephant in the room - taking up all the space and sucking up all the air. So, in Collaborative divorce, we take care to work with the clients about when and how the law will be introduced in the process. Clients may find the law useful to understand the reasoning underlying the law, the standards of society expressed in the law, and to compare their potential agreements against what they could expect in the legal marketplace. Knowing all this often helps the clients to make their own customized agreements.
What else, apart from the law, can people look to for help in making decisions in their divorce? They may want to consider: 1) agreements they may have made with each other during their marriage, either verbally or in writing, that they want to honor, 2) their individual needs and interests that are important to them, 3) the needs and interests of other people, such as their children, other family members, friends and colleagues, 4) basic financial realities: what the law provides may not fit their situation, 5) something that happened in their relationship they may want to honor or account for, and 6) any other factor that is important to one or the other. Thus, the law is only one of seven reference points for making decisions in a Collaborative divorce.
The goal for most clients in a Collaborative divorce is to reach a mutually acceptable durable resolution. An agreement is not durable, or lasting, if a person realizes some years later that they never would have made such an agreement if they had known then what the law provided. So, Collaborative attorneys want to educate the clients about the law at some point in the process, but will take guidance from the clients as to how and when to introduce it. Instead of the law being “elephant-size,” we want to “people-size” it. Then, clients can customize their decisions to fit their particular situation, needs, and interests.
Nancy J. Foster, J.D. is a mediator, Collaborative divorce attorney, trainer and Executive Director of the Northern California Mediation Center in San Rafael, CA. See more at www.ncmc-mediate.org.
photo credit: Ann Buscho, Ph.D.