Forward Thinking Family Law Since 1994

Settling Your Divorce in Court is NOT Necessary

Particularly if you have children, there are tremendous benefits from maintaining a civil relationship with your spouse. Even couples who do not have children may need to work together in the future. In Michigan, starting a divorce requires the word, "versus."

In other words, husband versus wife. In this format, it is difficult to remember that it requires working together to achieve settlement. Smart couples know that there is more to gain from good will than dissatisfaction in an unpleasant divorce.

We can learn from our northern neighbors. In British Columbia, the new Family Law Act clarifies that the courts are not the starting point for divorce. Instead, families are encouraged to work together in mediation or collaborative practice. They have changed the "default practice." To their credit, British Columbia acknowledges that during this highly emotional time, spouses need encouragement to avoid acrimony.

The United States could learn from their example. We should encourage families to handle their disputes outside an adversary system that is not structured to deal with emotions or best interests of children, much less consider their developmental needs. Parents cannot effectively raise children after they have fought with each other in courts.

To opt out of this default system requires both spouses to agree on and remain in a consensual dispute system, such as mediation and collaborative practice. If one party decides to abandon that system, the family is thrown into the litigation model. Often parents are not aware that whether they chose mediation or collaborative practice, that there will be tough times. There will be sessions where angry words and accusations will be exchanged. However, with assistance from experienced attorneys, mediators, mental health professionals or financial professionals, they can keep control over their future and reach a settlement that reflects their family's values. The alternative is turn over the power to deciding your family's future to a judge who barely knows your family or the needs of the individuals.

Unfortunately, in the United States, many legislatures are adverse to making divorce "easier." Efforts at reforming the system are limited. In many cases, lawyers are adverse to change and fear that their practices will suffer if they cannot take their clients to court.

The public and professionals can learn from the experience of British Columbia, Australia, England and Wales where the default is focusing directly on the needs of the family and using consensual dispute resolution methods.

The outcome will be

• keeping the power where it should be; with the parents,

• focusing on the needs of the children,

• conserving family resources,

• channeling emotions productively through the grieving process,

• building a civil relationship between family members,

• who will continue to work to together for the benefit of their family.

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