By: Ronald
D. Ousky
Published in the July/August 1998 issue of Family Times
When divorcing parents go to court, children often suffer.
This concern is leading divorcing parents to increasingly seek out options
for ending their relationship without engaging in a family conflict
that could have a devastating impact on their children. In response
to this great demand, many new alternatives have evolved to help families
resolve their disputes in a civil and dignified manner. However, unless
parents fully understand these options early in the process, their plans
for an "amicable divorce" can quickly get off track. Consider
the following example:
Carol stayed in her marriage long after the relationship
with John had deteriorated because she wanted to protect the children.
Finally, she decided to file for divorce after she came to believe that
the conflict in the marriage was more harmful to the children than any
harm that a divorce could bring.
During her first meeting with her lawyer, Carol insisted
that she wanted an "amicable divorce." Despite her differences
with John, Carol understood that the children loved their father and
she wanted John to have a liberal visitation schedule. Without exploring
other options, Carol served the divorce papers stating that she wanted
"sole custody." Carol hoped that John would respond by negotiating
with her about the issues in the divorce. To Carol's surprise, John
filed motion papers with the court saying that he was the better parent
and that he should have temporary custody of the children. Carol could
not believe the lies and distortions in John's papers. Carol countered
with papers of her own, defending herself against John's allegations
and demonstrating to the court that John was not the great father he
claimed to be. One week later, Carol found herself sitting across a
table from John in a small courtroom. A few feet away, attorneys she
barely knew described their parental weaknesses to a judge she had never
met.
Years later, Carol does not remember who "won"
that first hearing. She remembers more vividly the hurt and the anger
and the intense fight that followed. Once the battle lines were drawn,
it seemed impossible to turn back. Although the divorce was completed
within a year, the conflict continued. As Carol and John became increasingly
unable to resolve their own disputes, they were forced to turn to the
courts to solve many of their disagreements. Predictably, the children
suffered from the turmoil. Counselors and judges warned Carol that the
conflict has to stop for the sake of their children. Throughout the
years of battling, Carol complained that there was nothing she could
do because it was impossible to communicate with John. Now, after years
of hearings, evaluations, and counseling sessions, Carol is wondering
whether there is anything she could have done differently.
Carol's story is not unusual. Her good intentions for
an amicable divorce could not, by itself, keep her out of court. If
she had chosen an alternate method of resolving her dispute at the beginning
of the process she may have been able to persuade John that it was not
necessary to go to court. However, once parents find themselves involved
in an adversarial process, the allegations that surface can fan flames
of anger and resentment that make the prospects for finding a civil
solution increasingly elusive.
Today, professionals involved with divorcing families
are trying to put an end to high conflict divorces that threaten the
security of children by encouraging parents to explore other options.
As part of this effort, the Minnesota Supreme Court recently amended
its rules to require all divorcing couples to attempt to resolve their
disputes through an alternative process before going to court. These
new options are designed to reduce the conflict that surrounds the divorce
and allow families to get through the divorce process more quickly and
with far less expense. Because these alternatives generally teach the
parents how to resolve conflicts on their own, most parents who use
these methods are successful in staying out of court after the divorce.
The following is a brief description of some of the alternatives
that are currently available to help families facing divorce.
- Mediation: Clients choose one or more neutral professionals
to help them reach agreements. Mediation does not generally eliminate
the role of attorneys since the parties are urged to each choose an
attorney to advise them of their legal options and to draft the final
documents. However, mediators reduce the role of the attorneys and
reduce the conflict that can occur through an adversarial process.
- Collaborative Law: Both parents hire lawyers who agree
to resolve all issues out of court. The attorneys assist the parties
in reaching agreements using cooperative strategies rather than adversarial
techniques and litigation. Collaborative Law can be used in conjunction
with mediation or as a separate process. For more information about
Collaborative Law, call the Collaborative Law Institute at 612-566-8800.
- Divorce With Dignity: Clients and their attorneys work
with a judge to find solutions in an informal manner. While the program
tries to assist the parties and the attorneys in reaching their own
agreements, the judge can, if necessary, make decisions. Divorce with
Dignity has been available in Hennepin County for several years and
is starting to spread to other counties. To find out whether Divorce
with Dignity is an option in your county, call the court administrator
in the county of your residence.
- Arbitration: Parties who cannot reach an agreement
on their own choose to have decisions made by someone other than a
judge. For example, if parents cannot agree on custody, they can choose
a neutral child psychologist to make recommendations or even binding
decisions.
- Mediation/Arbitration: This is a combination of mediation
and arbitration which allows the mediator to make decisions if the
two parties cannot reach an agreement on their own.
- Parental consultants: The parties choose a child psychologist
to help them make parenting decisions that are in the best interests
of the children.
- Education: Although not technically a separate alternative,
educating families about divorce is another tool to help families.
There are an increasing number of educational programs available throughout
the Twin Cities. Many counties are now requiring that all parents,
(and sometimes children) attend classes designed to help them better
understand what is happening to their family and to guide them in
making decisions that will better serve the needs of their children.
Despite the benefits presented by these options, some
parents remain reluctant to seek a more "civil divorce" because
they fear that these alternatives will not protect them. They fear that
their financial settlement or their desire for adequate time with their
children will be sacrificed on the altar of reducing conflict. However,
most professionals agree that these low conflict alternatives generally
produce better results for both parents as well as the children. Visitation
or access schedules are often improved because the parents, working in
a cooperative process, are likely to generate creative solutions that
a judge would not have ordered because of legal limitations or the lack
of full information. In addition, because the divorce will be less expensive,
there will be more financial resources available to meet the needs of
the family.
There are also parents who believe
that a litigated divorce is their only option because there has been
a history of domestic violence. It is true that a history of violence
will eliminate some options. Victims of domestic abuse are not restricted
to court as the only means of resolving their family law matters. However,
if there is a history of domestic abuse, the process will need to be
modified to provide full assurance that the victim feels safe throughout
the process and the professionals engaged in the alternate process must
be trained in dealing with issues of domestic violence.
Regardless of the direction that parents
wish to take, it is critical that they understand all of their options
at the very beginning of the process and that parents explore those
options carefully before they take action that may take them down a
path that they did not anticipate.
