Thursday, November 13, 2008


"Litigation… merely continues conflict and offends nature
it does not heal." – Confucius

How many of your friends, clients and family members are going through an acrimonious divorce and need help? Our court system is based on adversarial principles. However, when spouses are going through a divorce they, as people, are often vulnerable, emotional and irrational. While they are in that state their judgment is often impaired, and yet they must make some of the most important personal and financial decisions of their life.

When parties separate, they must first address their immediate needs. How will the mortgage be paid while we are deciding what to do with the house? Who will pay the bills and take care of the children? In a traditional litigation, the immediate needs of the parties are often addressed by motion when the action of divorce is filed. The structure of the court process necessarily reshapes the spouses into “adversaries” and escalates hostility between them. If the mother, Jane seeks temporary custody, her lawyer will often paint her as a saint and demonize the father, Tom. If Jane needs temporary financial support, her counsel may exaggerate both her financial difficulties and Tom's income. In response, Tom's attorney may argue that Jane does not spend enough time with the children and that Tom's income is really minimal. What do you think happens when Jane and Tom read each other’s affidavits?

As a matrimonial attorney who has seen her share of nasty divorce cases, I can tell you that the last place where parents and children, who undergo the emotional trauma of divorce should end up is in court. Our litigation system forces one partner to take a "position" against the other. Sometimes, it even forces children to choose between parents or to abide by a choice made for them by a total stranger.

It is unfortunate that many people are not told by their lawyers that there are other alternatives to a litigated divorce. Some states actually require lawyers to inform their clients about it, but in New York we are not yet "that advanced". After all, we don't even have a real "no fault divorce" yet, either.
However, there are other excellent options for divorcing and separating partners in New York State, such as divorce mediation and collaborative divorce. To learn more click here:

If you have any questions and/or comments about divorce mediation and collaborative divorce please post them here.

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