The is the first 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.
“Nobody can go back and start a new beginning, but anyone can start today and make a new ending.” Maria Robinson
If you get into an argument with someone, does it do you any good to dwell on it for the rest of the day or the week or the year? Most people would agree that revisiting the argument over and over again serves no purpose other than to compromise their productivity and the quality of their life. It’s common sense. Focusing instead on the present and the future, on the rest of the day, enables you to go back to being your best self. Eventually, you will forget about the argument—and perhaps even try to mend fences with the other party.
In litigated divorces, going into court and asking a judge to make decisions for you and your family can result in arrangements that are based on the past—past income and past behavior—and keeps you locked in the same arguments over and over. The questions the judge will want answers to include: How did money get spent in the past when the family was intact? Who primarily cared for the children when the couple was living together? The answers to these questions are important, but you and your spouse may not necessarily agree on what the answers are. And, even if you did, the answers may have very little to do with what will happen in the future.
For example, if the court is being asked to rule on the custody and parenting schedule for a three-year-old child, he or she can only rule on what’s in the best interests of the child at that time. A court-issued parenting plan will not be able to address how changes to the schedule will be made as that child grows and changes. When circumstances change (which they are sure to do), and you and your ex-spouse aren’t able to agree on how to resolve the issue, you could find yourself before the judge again. Not only will you incur more legal fees, but you and your children will need to deal with the emotional toll of litigation all over again.
This could have been avoided if you and your spouse came to an agreement that took those future changes of circumstances into consideration. You could have addressed how the parenting schedule will be modified, or even just discussed, as the child’s needs change. The negotiations that take place during the mediation and collaborative law processes are inherently forward-thinking. You and your spouse are going to be able to make an agreement that anticipates your future needs and expectations, as opposed to what happened in the past. When negotiating outside of the court system, there is ample room to consider the various proposals being made and how they would work in varying future scenarios.
As a mediator and collaborative lawyer, I am constantly asking my clients “What if” questions.
Take, for example, a couple with a husband who isn’t quite clear about where he will be working in a year. He knows he’s going to work for the same company, but he may take a bigger job, or even be moved to another state. The wife in this scenario has been out of the work force for the past five years, but is ready and willing to get her career back on. The couple has also agreed that the house where the wife and children are living will be sold in two years. We don’t need to wait until all of these details are ironed out before we can talk about parenting schedules, support obligations and the division of assets. Our agreement can talk about “what if’s”:
- What if the husband stays in the area and gets a raise?
- What if the husband is moved to another state and cannot see the children as often as he does now?
- What if the wife doesn’t find a position paying her a salary that she feels she needs?
- What if the house doesn’t sell as quickly as they hope?
The couple can address these multiple scenarios in their Settlement Agreement as well as address what happens when there are additional changes in the future. If this same couple asked a court to rule on the parenting and support issues, most of those “what if” scenarios would not be addressed in the judge’s decision.
In the end, the main benefit to having a future focus is an agreement that is durable and can provide longer-term satisfaction. In mediation or collaborative situations, we’re going to be paying attention to the longevity and flexibility of the agreement—so you don’t have to go back to court and you can actually move on with your life.
To find out more about how to keep the focus on the future in your divorce negotiations and end up with an agreement that works, contact me.
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New York, NY 10022