Introduction

Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse. Divorce existed in antiquity, dating at least back to ancient Mesopotamia and was granted only because one party to the marriage had violated a sacred vow to the “innocent spouse. Divorce before the 1920’s was based on the husband not providing ‘life’ necessities’ for his child and wife.

Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful and expensive litigation. Divorce mediation is an alternative to traditional divorce litigation. Divorce mediation can be significantly less expensive than litigation.

Divorce

Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts.

No Fault Divorce

Under a no-fault divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party to be shown. Common reasons for no-fault divorce include: incompatibility, irreconcilable differences, and irremediable breakdown of the marriage. Forty-nine of the United States have adopted no-fault divorce laws. Fault divorces used to be the only way to break a marriage, and people who had differences only had the option to separate (and were prevented from legally remarrying). Fault divorce can affect the distribution of property, and will allow an immediate divorce, in states where there is a waiting period required for no-fault divorce.

Collaborative Divorce

Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be substantially less expensive than other divorce methods (regular divorce or mediation). Furthermore, there are no set enforceable timelines for completion of a divorce using collabrative divorce.

Divorce Mediation

In a divorce mediation session, a mediator facilitates the discussion between the husband and wife by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses have agreed on privately.

Other Considerations

In their detailed analysis of divorce rates, Kuhn and Guidubaldi conclude that acceptance of joint physical custody may reduce divorce. There are significant emotional, financial, medical and psychological implications of divorce. A defense is expensive, and not usually practical as eventually most divorces are granted. It is estimated that upwards of 95% of divorces in the US are “uncontested,” because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed.