Wednesday, March 25, 2015

Alternatives to family court litigation

Legislators in Minnesota recently introduced a “cooperative private divorce” bill that creates an online path to divorce that skips the court system entirely.  Couples would file an “Intent to Divorce” form, consult with advisors (legal, financial, mental health) of their choice during a 90 day waiting period, and then file a “Declaration of Divorce” containing their agreements.  That’s it. No court, no judicial oversight.  And should either spouse feel dissatisfied or bullied, they could leave the private path and start traditional legal proceedings at any time.

The primary objection to this approach is that without judicial oversight couples will reach bad agreements.  But how do we know that?   Has that notion ever been tested? (Answer: No). We don’t require judicial approval of wills, real estate transactions, parenting practices or medical decisions. Why do divorcing couples need a legal system to sign off on what the couple deems to be fair?  And if a couple really wants to reach a complex agreement that takes into account all the nuances of family law, it can hire lawyers to do the work.

No state provides couples a cooperative pathway to divorce as envisioned by these creative Minnesota legislators – yet – but more and more  divorce professionals and online sites offer supportive services for couples who want to avoid litigation and the associated expense, recognizing a growing market of divorcing couples who want to seek fair, informed agreements by cooperating rather than competing.  
But couples who are considering completing an uncontested divorce on their own should beware; the most   important word  in the prior sentence is informed.   A slap dash divorce agreement reached hastily “just to have it over-with” can cause unanticipated problems and cost hefty legal fees to correct.   Getting counsel from trusted advisors – who are often far less expensive when litigation is not involved—is usually a step worth taking. Financial professionals can help couples understand the tax consequences of divorce, how to divide a retirement plan, what’s the best way to handle the family home. Mental health professionals can help parents understand the needs of their children and craft sensitive parenting plans.  Mediators can help couples brainstorm and evaluate different options.  And select online services, such as NegotiatedDivorce.com for couples in Texas, offer extensive educational material about the financial, parent-child, and legal aspects of divorce as well as instruction about how to negotiate efficiently and fairly – at a significantly reduced cost compared to professional fees.

The United States has gone through many social evolutions, including emancipation, suffrage, civil rights, women’s rights, and LGBT rights.  The prevailing trend in our country is toward personal empowerment and respect for the individual.  Similarly, the divorce system, with innovations such as mediation and collaborative law, can be expected to gradually give up its paternalistic mindset (“we know what is best for you and your family”) and institute changes that let couples decide for themselves: “What is best for our family.”  With the right help, many couples can take that step now.

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