Is Divorce Your Only Option

By Staff Writer

Anyone who has ever been married knows that marriage is not always about good times. Even the strongest of relationships experience hardship and sorrow. If you and your spouse are going through a difficult time, you may be considering your options and you may need to decide whether divorce is the answer for you.

When a new client comes into our office, we routinely ask whether the couple has tried marriage counseling. Often, with the assistance of a trained professional, couples can learn to work through the rough times and make the relationship stronger.  If both parties are committed to counseling and to undertaking whatever course of action necessary to save their marriage, counseling can be a viable and valuable option.  However, in many instances, one party is requesting and committed to counseling and the other party is resistant to that process.  When that occurs, the counseling usually fails.  

If counseling has been attempted, or if it is simply not an option, it is not always necessary to immediately file for divorce. Separation is a less drastic alternative that works for many. Separation can either be formal or informal. In an informal separation, one party simply moves from the marital residence. This can, however, create difficulties. Many issues, such as payment of marital bills, financial support, custody and visitation, will be left unresolved, thus leading to the likelihood of future conflict and/or litigation. For these reasons, before one party moves out of the residence, you should discuss your circumstances with an attorney and consider all of your options and all of the potential consequences of your actions.

A legal separation offers more protection to both individuals than does an informal separation. A legal separation can be accomplished by entering into a formal and written document, usually called a Separation Agreement. Once a legal separation has been obtained, an enforceable legal document is created, spelling out each party’s rights and responsibilities. That agreement then reduces the potential for future disagreements and also offers recourse through the Court system if one of the parties does not adhere to its terms.

A Separation Agreement should resolve all of the issues pertaining to the division of property, custody, access time or visitation, child support and spousal support. To the extent that you leave any of those issues out of your agreement, you have left open the possibility, and sometimes necessity for later litigation.

It is not always necessary to resort to litigation, or to hire two separate lawyers, to resolve your matrimonial differences. Many parties go through mediation to work towards a Separation Agreement. In mediation, both parties meet with a neutral mediator who will assist the parties in amicable resolving all of their issues. Once a global settlement is reached, the mediator will prepare a document setting forth all of the terms upon which the parties have agreed. That agreement is usually NOT the legal Separation Agreement. In most cases, the mediator will instruct the parties to each retain their own attorneys to review the mediated agreement and to prepare a Separation Agreement based upon that mediated agreement. In some cases, it is possible to have one attorney review the mediated agreement and prepare a Separation Agreement based upon that agreement. The mediator will provide guidance in each case as to the possibilities available to the parties.