I. The Decision to Divorce
If you’ve definitely decided to get divorced, proceed to step 2 below. If you aren’t sure, however, then you really should consider professional marriage counseling. Marriages can be returned to health, if both parties are willing to do the hard work to address root causes. As a professional who has been involved in divorce processes for many years, I have observed that credentials of a marriage counselor are very important, and also so is finding a counselor who feels “right” for both of you. Seek someone who is, at a minimum, professionally licensed as a marriage and family therapist (will have the letters LMFT after their name) or has a Ph.D. in counseling or psychology. This is a bare minimum. Unlicensed or unskilled counselors can do more harm than good. A good pastor is one who knows and adheres to their own professional limitations and boundaries.
Going to counseling is not a sign that either of you has an individual “problem.” Nor is it a sign that either of you has “mental illness.” Rather, licensed professional marriage and family therapists and psychologists have many skills and techniques that really can help. Additionally, even if counseling is not able to “save” your marriage, professional counseling can assist with both the decision to divorce and the adjustments that will occur as a result of this major life event. Most people find the assistance of a mental health professional extremely helpful during this painful episode in their lives.
If your spouse has asked you to attend counseling with them, do you love them enough or are you committed enough to make this effort to save your marriage? Maybe you don’t see a problem, but that’s not the point. Listen to your spouse’s cry for help. They are extending an opportunity to you to try and fix things. Even if you don’t feel so loving toward your spouse right now, there is a chance that working on your marriage might fix some issues. The feelings might return. Also, if you tried counseling and it didn’t “work,” consider that you might need to try a different counselor. Over the years, I’ve seen many cases where things didn’t “click” with one counselor, but they did with another. There are many styles of counseling. Some schools of thought put more emphasis on “doing” while others put more emphasis on “gaining insight,” and others are a blend. Some styles work better for one person while a different style works better for another. And in some cases, it’s just a matter of personality. Isn’t your family worth the effort, to make a really good try?
But, if you really have tried and the decision has been made, then …
2. The Emotional Process of Separating
Sadly, sometimes counseling cannot save a marriage, or relationships may be so toxic that it really is best if people decide to separate. Separation is not just a one time event. It is a process that involves separation of emotional, financial, physical and parenting lives. As a practical matter, separation happens by degrees and over a period of time. Often, the person who first physically leaves a marriage may not have been the first one to leave in an emotional sense. The process of separating will, eventually, require rearrangement and separation of not only emotional attachment, but also physical living space, finances and bank accounts, property, and parenting arrangements. Other issues couples will face during the process of separation are things like when and how to tell the children and other family members, and timing of the various business and property transitions.
The process of deciding to separate also includes making a decision about that will be used in obtaining a divorce and making this final separation into a legal event, with a complete and legally binding marital separation agreement. In my opinion, it is very important to separate the emotional aspects of divorce from the business and legal side. This is challenging to do, but it is important. Acting upon emotional needs or impulses in the legal process is both counterproductive and expensive. Most people find assistance of an individual counselor more helpful in dealing with divorce than the financially expensive and emotionally unsatisfying alternative of playing out these issues through the court system.
3. Deciding on a Process
The legal and business side of divorce is divided into two stages.
A. In the first stage, a couple negotiates how they will separate their joint lives to create two separate and independent lives. This involves emotional adjustment, physical changes in living arrangements, financial adjustments in the family budget, division of property, and renegotiation of parenting arrangements. After these issues are negotiated, most people formalize their agreement by entering into a Marital Separation Agreement (often called a MSA).
B. In the second stage, a court is asked to approve the arrangement. The court is only required to be involved in the decision process regarding the settlement agreement if the couple cannot agree on their own, or if one party is using an imbalance of power (physical, financial, emotional) to perpetrate an unfair situation. If a couple is committed to principles of fairness, on the other hand, it is generally far preferable for them to negotiate their own agreement. Once the agreement is reached, it can be presented to the court for approval. But how can settlement be reached? What should be in the settlement agreement?
4. Negotiating a Marital Separation Agreement
How can you be sure your agreement has covered the things it needs to cover and that it is fair? This concern for fairness is good justification for seeking help from a divorce professional.
A. Mediator A professional divorce mediator has training in the substantive issues of divorce and helps parties reach agreement about their divorce settlement. A divorce mediator may also suggest use of additional professionals who can assist in the process of deciding key issues and also keeping the best interest of the children at the forefront of consideration. After the mediator helps you reach a settlement, then you will still need to go to court to have your settlement approved by the court and made into a final divorce decree. However, use of a mediator to reach the settlement bypasses the sometimes ugly and expensive adversarial litigation process that is involved when you ask a judge to decide how your personal affairs should be divided up. Mediation is not for everyone. For mediation to work, both parties must be committed to principles of fairness and they must have ability to make their own, voluntary decisions for themselves. You are currently visiting the web site of a divorce mediator.
B. Collaborative Divorce Attorney In collaborative divorce, both parties have an attorney who negotiates for them and helps them decide what other professionals may be needed to assist in reaching a fair divorce settlement that also takes into consideration the best interest of the children. A collaborative divorce attorney should be certified by the International Association of Collaborative Professionals (IACP). In addition to being a divorce mediator, I am a collaborative divorce attorney certified by the IACP.
C. Litigation Attorney If one side is not committed to fairness, then the court system will be needed to enforce principles of fairness, using methods such as interrogatories, depositions, requests for production, motions, and hearings. Generally speaking, this is the method that most attorneys are trained in and will turn to by default. This tends to be the most adversarial and expensive method for reaching a divorce settlement. Because I focus my practice on non-adversarial cases, I do not generally accept litigated cases.
D. Do-It-Yourself Parties often decide on a settlement between themselves. If they agree on everything, their divorce is “uncontested” and the legal process to have the settlement approved is relatively simple. However, mistakes can be costly. What if a party does not realize, for example, the extent of marital property, or what if they fail to make provisions for proper distribution of the marital property? What if they do not even realize what the options are? Even when parties think they have reached a full and fair settlement, it is wise to get feedback from a professional, asking them candidly if the settlement has covered all the issues and appears to be even-handed. I am willing to review DIY agreements and papers on an hourly basis.
e. A divorce professional can assist couples in determining which process is most appropriate for their need. For a consultation or initial appointment for a mediated or collaborative divorce, call 803-414-0185.
5. Getting the Settlement Approved
Most cases, including cases that start out being litigated in the court system, reach settlement without necessity of a full-fledged trial. However, the divorce cannot be finalized until papers are filed in court and the settlement has been approved by the family court. So, regardless of which process is used to decide on a divorce settlement, eventually papers must be filed to ask the court to approve the divorce. The question is, when will papers be filed. In an ordinary, litigated divorce papers are filed at the very beginning, to get the process started and includes asking a judge to decide the issues in the case. In a mediated or collaborative divorce, in contrast, papers are not filed until after a settlement has been reached.
To make it clear, in a litigated divorce, “papers” are filed right away, thrusting the parties into an adversarial posture of A versus B. In a mediated or collaborative divorce, “papers” are not filed in court until after the parties have entered into their own, voluntary Marital Separation Agreement. I do not think that most parties, when they consult an attorney about divorce, realize that “filing papers” immediately is not necessarily the only option!* This may seem like a small matter, but it illustrates a very big difference between litigated and mediated divorce. Litigated divorce assumes the parties will not be able to reach their own agreement and starts out the process by asking a judge to decide. This results in a process that is driven by the need for “evidence” in a “court” and requires the expertise of an attorney familiar with judicial procedures, taking control away from the parties themselves. In mediation and collaborative divorce, although professionals are consulted and direct the process to a large extent, the parties remain in control and all decisions are voluntary. Thus, mediation and collaborative divorce keep private family decisions within control of the parties, while litigated divorce takes that control away and places it in the hands of a family court judge. In some cases that judge is needed. In many cases, the parties are better served by and end up happier with a process that keeps them in control.
6. Obtaining a Final Order of Divorce
When the court approves the settlement and the divorce, it will issue a Divorce Decree. Generally, an attorney drafts this for the judge’s signature and also takes care of filing the needed official paperwork to make it final. When cases have been mediated by other mediators, or in cases where there truly is nothing left that is contested, I am happy to assist in legal representation to draft any separation documents that are needed, file legal papers to obtain the final decree, appear in court, and finalize the divorce decree.
After this, the couple may still have business affairs to finalize, and then the next stage of life begins, which is
7. Post Divorce Life
After the divorce, each of you will have separate physical, emotional, and financial lives. If you have children, however, you will still be tied together not just by your children, but also by grandchildren and a shared hope for all of the future generations of the family you share. The quality of your divorce process will be reflected not just in the sustainability and fairness of your financial divorce settlement, but also hopefully will contribute to the well being of future generations. My personal observation of the processes and of the long term effects of divorce on families is the reason that my practice is limited to the non-adversarial methods of reaching divorce agreement.
If you are interested in a divorce process that you maintain control over, in which you reach your own voluntary settlement, and which enables you to continue to co-parent with as little “collateral damage” to your family as possible, and if you feel both parties are committed to principles of fairness, please feel free to use the contact form on this site to request an appointment to discuss your options in person.
*Divorce law varies from state to state. Information on this web site should be taken with that in mind: it is information designed to be helpful, but it is not legal advice. Learn as much as you can about these topics by researching on the internet, but do not rely on information until you have consulted with a qualified professional who is licensed to practice in the jurisdiction where you reside. Information on this site is specific to the State of South Carolina, in the United States.