When you divorce, it’s up to you and your spouse whether you want to try to reach a settlement out of court or whether you will submit your disputes to a judge. There are many reasons why working toward a mutually acceptable settlement -- through negotiation, mediation, or collaborative divorce proceedings -- is preferable to a court battle, or “contested divorce.”
The Perils of Contested Divorce
If you and your spouse can’t reach agreement on one or more of the issues at stake in your divorce, then you will have to submit your disputes to a judge for resolution based upon the applicable rules of your state. If your disputes are complicated, each of you will probably need to hire a lawyer. You can represent yourself if you’re prepared to spend a great deal of time organizing your documents, researching the law to put together a legal argument that supports your position, and presenting your case to the local family law judge. Either way, getting your case in front of a judge won’t be simple or quick, and trial preparation can cost tens of thousands of dollars.
Unfortunately for those who want to take up the sword, a same-sex divorce can involve even more legal disputes than that of an opposite-sex couple. Opportunities for conflict abound in the areas of legal complexity, including:
- whether the partnership or marriage is technically valid
- when the partnership or marriage began, if the partners have multiple legal relationships
- what rules apply to premarital assets and debts
- how to deal with tax inequities arising out of federal nonrecognition, and
- whether both spouses are legal parents.
In addition to the burdens of stress, time, and expense that a contested divorce will place on you, there is another compelling reason to stay out of court. Because few courts have handled same-sex divorces, there is little established case law on the subject. This lack of precedent means there is a risk that your case will be subject to -- or will create -- unfavorable legal rules. Until there is a body of law governing same-sex marriage and divorce that is both stable and fair, one-off court cases can have potentially negative effects on divorcing couples for years to come.
Other Methods of Resolving Conflict at Divorce
If you and your spouse are facing a conflicted divorce and you want to keep your disputes out of court, you can choose among three basic methods for achieving resolution: negotiation, mediation, and a relatively new approach called collaborative divorce.
Negotiation is simply the process of talking out a dispute until it’s resolved. It can involve you and your spouse sitting down together and deciding how to divide your property, or it can mean that you each hire lawyers who negotiate on your behalf and at your instruction.
Negotiating directly with your partner. Many divorcing spouses feel they’re too emotional to work directly with each other to decide how to divide property and deal with parenting issues. This may be true for you, but if you are able to negotiate directly, you will save yourself thousands of dollars in attorneys’ fees. What does it take? A clear understanding of your position and a willingness to also understand your partner’s point of view (no matter how much you disagree with it), an ability to keep your eye on what is really at stake, and a persistent openness to compromise.
Negotiating through attorneys. If you don’t want to negotiate directly with your partner, you can ask a lawyer to negotiate on your behalf by working with your partner’s lawyer to exchange possible settlement scenarios back and forth until an agreement is reached. If you are going to hire a lawyer to negotiate on your behalf, make sure you hire the right lawyer. You need someone who will follow your wishes and work toward a settlement, rather than escalating things by being aggressive or stonewalling. Once you hire a lawyer who is qualified to negotiate, make sure you clarify how you want the negotiation to proceed.
Mediation is a form of negotiation that involves a neutral facilitator, called a mediator. The mediator is not a judge or arbitrator and doesn’t make decisions or issue rulings. Instead, the mediator works with both of you to resolve your disputes by helping you communicate effectively about your needs and interests until you’ve reached an agreement.
Mediation is particularly appropriate for same-sex dissolutions. Many same-sex partners haven’t organized their lives along the strict lines of marital rules, either financially or socially. Even the most traditional same-sex couples often think about and structure their families differently from the heteronormative model. Gender roles don’t sort out in strict husband/wife roles; money is often not shared; and sexual and social obligations may be arranged in unconventional ways.
Mediation allows a couple to choose their own mediator, set the terms for the conversation, and be fully themselves in this stressful situation, without either party running the show. It provides a private space for people to struggle through issues on their own terms and resolve them on the basis they believe is most fair, rather than automatically using marital rules. The great advantage to any mediation, straight or gay, is that the parties can settle their dispute on any basis they wish -- in contrast to a court case, they are not bound by the legal rules.
Mediation does require an ability to be relatively calm and able to articulate your concerns, and to respond to proposals in a timely way. If your breakup has been highly emotional it may be necessary to wait a few months before beginning mediation, to steady yourself emotionally.
Collaborative divorce contains some elements of lawyer-assisted negotiation and some elements of mediation. In a collaborative case each party has an attorney, and the attorneys act as advocates for their clients --but both spouses and both lawyers agree at the outset, in writing, that they will not take the case to court and instead will work to settle it. If one person does opt for litigation, both attorneys must withdraw and each party must find a new one -- who has to begin virtually from scratch.
The collaboration involves a series of meetings attended by both clients and both attorneys, in which the spirit of cooperation prevails and the goal is to arrive at a workable solution for everyone. Often, other professionals such as accountants or child custody evaluators are involved, but typically there is no third-party neutral mediator involved. This is a unique framework that can be very effective for complicated divorces, especially when a great deal of money or property is at stake or when parenting rights are in dispute. Collaborative divorce is not inexpensive. But as compared to a lengthy court fight, it can be an efficient and cost-effective solution.
Collaborative divorce only works when the partners and the lawyers have the awareness and discipline to act collaboratively, and when both sides are truly able to let go of any desire to have a referee or judge manage their divorce. In some states you may find that most of the trained collaborative attorneys have so far only worked on heterosexual marital divorces, and could need some additional training to handle same-sex breakups. But it should always be considered as an option.
For More Information
To learn everything you need to know about mediation and collaborative divorce, see Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner (Nolo).
This article is adapted from Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz with Emily Doskow.