The is the second article in a series focused on Why Court Should Be the Last Resort For Your Divorce. If you’d like a copy of the infographic that tells you more, click here.
Join me as we continue to examine the myriad reasons why you may want to reconsider the idea of having “your day in court.” Maintaining control and flexibility over your life and the divorce process are just 2 of those reasons.
As free individuals, we are not accustomed to, or tolerant of, other people telling us how to live our lives, spend our money or raise our children. Why should this change just because a couple has decided to end their marriage? Why would anyone assume that such a decision automatically means you and your spouse now need a judge to make these decisions for you?
If it’s important to you to keep some sort of control over your life during and after your divorce, do whatever you can to keep your divorce out of the court system. Remember that judges can only view your family as it exists right now and in the recent past. They must base all of the decisions that will affect your life and family on little more than a snapshot of your life—one that you may or may not have been ready for when it was taken. You have little control over what issues get discussed or how they’re going to be resolved. If your divorce is being handled in the court system, you’re handing over all aspects of your life, including:
- Where you will live during and after the divorce process;
- When you can see your children;
- How far you can move without your ex-spouse’s consent;
- How your assets and liabilities will be divided;
- The amount of spousal or child support awarded;
- What schools your children will attend and in what activities they will be enrolled.
Why give up control over these important decisions to a judge who can’t possibly know you, your spouse and your children in the way that you know yourselves? When you keep your divorce out of court and use the mediation or collaborative law process, you’re keeping control out of the judge’s hands and making sure it stays in yours. You and your spouse are free to take any and every circumstance into account when structuring an agreement, and this leads to more realistic and durable agreements that actually work in the long run.
Courts run on laws, and only laws. When an issue is in dispute, the judge can only look at what the relevant statutes say and what other judges have decided in the past. Additionally, the judge is only considering evidence that reflects your recent past and present circumstances. He or she then narrowly applies that law to your current situation and makes decisions that will be binding forever. Be prepared to spend extensive funds and years of your life if you attempt to make a new legal argument that has never been heard before. And it’s probably not worth your time asking the judge to consider future circumstances that you feel are likely to occur but cannot actually prove at this time (such as a job change or your child’s future needs).
On the other hand, mediation and the collaborative law process encourage creativity and new ideas. In fact, some couples decide to completely ignore the law and build their agreements on other foundations. Unlike court, you can craft an agreement that includes terms that are in place for just a few years or until certain events occur, with the intention of revisiting those terms again in the future. You may also choose unconventional co-parenting plans like nesting; or you may agree to spousal or child support terms that are far more or far less than what a court may have done.
If maintaining control over your own life—and having the freedom to structure your agreement as you see fit—is important to you, think seriously before you choose an attorney. Attorneys who primarily litigate are used to working with clients who are unable or unwilling to do the work that’s needed to stay out of the courthouse. They may assume that if you’re hiring them, that you want or need a judge to make these decisions for you. A mediator or collaborative attorney will assume just the opposite—and will provide the type of advice and support to help you stay out of the court system. Contact us if you want to know more about how and why court should be the last resort for your divorce.
In my next post I will discuss the importance of keeping the focus on the future, rather than the past, if you want to stay out of court.
Vacca Family Law Group
One Grand Central Place
60 East 42nd Street, Suite 1420
New York, NY 10165