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"Breaking up is hard to do" by Christine M. Heer.
Tuesday, October 04, 2005 - Even though both people are absolutely certain that they were the one who was wronged and that their ex must be happy and smug, both parties are actually struggling to establish their new life. Usually, there is a lot of baggage in the way. Married couples have, for better or for worse, the formal procedure of divorce which provides guidelines for closure in certain areas. It is widely believed though, that the adversarial divorce system is woefully inadequate for managing the emotional concerns attached to the break up of the family. Feelings of abandonment, betrayal, guilt, anger etc. attach themselves to the necessary decisions regarding property; children, pets and money, and they are like little land mines with hair trigger capabilities.
In the last fifteen years, the family law and therapeutic professional communities have merged their expertise, the result being the process of divorce mediation. The adversarial approach to a break up is predicated on the concept of each person getting all they believe is due them from the relationship and relies upon the professionals to fight for the best outcome for their client. Negotiations are often done by the professionals with the final decisions being made by a judge.
Mediation requires that a trained professional, a “neutral” facilitate a decision making process between the parties, which results in a mutually agreed upon plan for the restructuring of the family system. Legal professionals provide consultation as needed and are usually hired to present the agreement to the court for the judge's approval. The literature indicates that mediation not only promotes agreements that are adhered to in the future, but also is a process that is often less costly to the parties.
When a relationship is in trouble, therapy should generally be the first step. In many cases, couples counseling may help the couple identify and find solutions to the problems they are facing. (Couples counseling as well as mediation is NOT recommended for relationships in which there is domestic violence.)
If the relationship must end, mediation can be used to provide a structure for those necessary decisions requisite for terminating the relationship. There are several key areas in which decisions must be made. The first area concerns residential property, most especially, the primary home. The home can be one of the land mines previously mentioned. While certainly an issue of financial investment for one or both of the partners, the home is also an issue of emotional investment. The home often is a reflection of both the individual and the relationship. Mediation recognizes the emotional loss attached to decisions about the home, and encourages the parties to make decisions that acknowledge those losses.
The next area of concern focuses on the children in the family. The New Jersey courts recognize that it is in the best interest of a child to have a continuing relationship with both parents absent unfitness of a parent. A parent who is angry, betrayed, rejected or hurt may be inclined to want to deny the child contact with the other parent in retaliation or to punish their ex. Mediation respects the child/parent bond that existed before the break up, as it is in the best interest of the child to continue in the security of all healthy, loving relationships. Mediation recognizes the value of family counseling, therapeutic visitation, re-unification therapy and parent coordination to facilitate secure, healthy parent/child relationships.
Property owned by the couple can also be the fuse for an implosion. Usually, each person brings some property into the relationship. There is also property which the couple obtained together. It is not uncommon for separating couples to fight viciously over property that may be minimal in actual value (but priceless in terms of emotional value.) Just who did buy those record albums anyway??? Even non violent couples have come close to blows over who gets the vacuum, the couch, the corning ware.
Divorce laws consider property brought in, and property jointly obtained, differently when it comes to distribution. The law considers the value of the property in relation to the duration of the marriage and the marital effort leading to the increase in value of the property if any. Equitable distribution which governs property division in New Jersey looks at a variety of factors, and division is not always 50/50. The mediation process encourages a good faith mind set and provides the structure for making these decisions. The parties are encouraged to view the decisions from a perspective of what is fair and in the best interest of the future relationship. Thus, the items become less of an arsenal.
The most complicated issue is often the financial assets. Many couples share joint bank accounts. Others have made promises of lifetime financial support. These issues need to be addressed during a break up. A divorce agreement may address spousal support, distribution of pensions, IRA's, etc., distribution of assets (present and future) from businesses. Mediation asks each member of the couple to respect their own word, and to remember why promises were made. Mediation encourages the couple to mutually find a resolution by letting go of stubbornly held positions.
Mediation may be especially useful and helpful to couples who are not legally married. According to the 2000 Census, there are over 151,000 self identified unmarried couples in New Jersey. Approximately 89% of those couples are heterosexual and 11% are same sex couples. About 40% of these families have children.
In New Jersey, issues regarding custody, parenting time and child support can be addressed by the courts regardless of the marital status of the parents. However, issues regarding property distribution are left to courts other than the family courts to decide. While these courts are quite competent in addressing property issues, they are not always “family” sensitive.
Further, while the new domestic partnership law helps establish partnership rights for same sex, and 65 years and older couples, there is not yet a clear track record for how property distribution, partner support and other financial issues will be decided. Mediation allows the partners to control the unknown to a greater extent and to minimize any bias that may be encountered in the courts. Admittedly, some matters will need to be addressed by the courts due to their complexity and the need to establish case law. However, for many others, mediation can be the best solution.
How would you know if mediation could work for you? Consider the following:
1. Can we stand up for ourselves emotionally?
2. Is one of us intimidated by the other?
3. Has one been abused by the other?
4. Are we both committed to what is fair?
5. Does one of us feel forced to try mediation?
6. Can we each express our thoughts clearly?
7. Can we hear what the other person is saying?
8. Do we feel willing to negotiate, compromise, and
try for a "Win-Win" solution?
9. Is financial knowledge and power pretty equally
balanced in our situation?
From: Collins, V.F., Wall, G., Smart Ways to Save Money During and After Divorce,Nolo Press, Berkley Ca.., 1994
Healthy and intact families are valuable and special. Before problems arise, nurture your relationship; respect your relationship; work to maintain your relationship. Sometimes the relationship cannot survive no matter what you do.
If you find yourself facing a break up, and your answers to the above question indicate an ability to negotiate toward a win-win resolution, mediation may be the answer, FOR BOTH OF YOU.
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