Debunking the Urban Legend of Conscious Uncoupling

Know the Three Ways to Get Divorced

With the advent of Gwyneth Paltrow’s catchy divorce moniker, “conscious uncoupling,” it seems that the only enlightened approach to divorce is to mediate.  And while mediation can be an effective solution in certain circumstances, it is not an effective way to end many marriages.  Why?  Because many partners are simply not conscious.  If your spouse is unreasonable, difficult, narcissistic or dealing with an addiction, mediation is going to be a waste of time, money and could be counterproductive.

Recently I received a call from a panicked woman with four young children who recently finalized her divorce through the mediation process without consulting an attorney.  In doing so, she gave away many of her rights, just to obtain “peace.”  Right after the divorce was finalized, she learned that her husband had another child with his girlfriend, while the mediation was underway!  Naturally, she was furious and wanted to “undo” the divorce.  But sadly, it’s too late.  

In order to get what you want in your divorce, it is imperative that you understand the different ways you can get divorced so that you can choose what makes the most sense for you.

1. Mediation

In mediation, you and your spouse meet with a mediator (usually an attorney or a retired judge), who will help you work towards settling the issues in your divorce—property division; division of debts; spousal support; and custody, visitation and child support if you have children.  Mediation is a voluntary process where the parties work with a neutral mediator to try to resolve their disputes without court hearings or a trial.  Mediators help the parties work out voluntary agreements that promote individual and common interests through understanding and cooperation.  Mediation is generally less contentious, less expensive, and sometimes less time- consuming than obtaining a divorce through the legal system. 

However, not every divorce can be mediated.  There are a couple of prerequisites that must be met for mediation to work. First, both you and your spouse must be able to set aside your emotions and treat the divorce like the dissolution of a business partnership.  And second, you both must be willing to cooperate and compromise.  If there is too much acrimony or either of you are unable to work cooperatively towards a reasonable compromise, then mediation will not work. And, if one person is incapable of being reasonable or is using the process to stall or to vent their emotions, then mediation is a waste of time. Sometimes the parties have to blow off some steam before they are able to mediate.  So the timing of when to engage in mediation is very important.

INSIDER TIP: Even if you mediate, you should still retain an attorney who will look out for your best interests and advise you along the way.

2. Collaborative Approach

The collaborative approach involves a team approach where the parties agree to cooperate with one or more attorneys and advisers (such as accountants, appraisers, child custody professionals and therapists) to resolve their differences and develop positive communication skills for future contact.  Through the collaborative process the parties reach voluntary agreements on all of the issues in their case without court hearings or trial. It can minimize the impact of conflict on you and your children and it provides greater support than mediation, since both you and your spouse are represented by attorneys and a team of other professionals during the process.  If you and your spouse are able to work collaboratively, you can create personal solutions that are right for your family, maintain decision-making with you and your spouse, and preserve your privacy. 

This approach is desirable if you have children and you place a high priority on continued positive communication with your spouse following the divorce.  However, it can be costly because there are more professionals involved and if one spouse wants to drag things out or is unwilling to collaborate, your case can get bogged down since there are no enforceable deadlines (unlike traditional litigation).  If you do not have minor children or you prefer to have less contact with your spouse, then the added expense and effort may not be worth it.  Like mediation, the process is voluntary and nonbinding.  So if you are unhappy at any point in the process, you can hire an attorney (who must be different from your collaborative attorney) and go to court.

INSIDER TIP: You cannot use your collaborative attorney to go to court if the collaborative process fails. Your collaborative attorney signs agreement that they will not go to court. So if the collaborative process does not work out, you have to hire a new attorney. If your spouse is not a good candidate for collaboration, it could end up being more expensive to achieve your desired result.

3. Traditional Litigation

Traditional litigation gets a bad rap for a variety of reasons.  It can be costly and litigation is uncertain.  A virtual stranger—the judge—makes binding decisions on life-changing matters concerning you and your children.  Sadly, there is abuse of process by certain “professionals” who earn their living billing by the hour and benefit by dragging out the case.  Some take unnecessary actions to pad their bill.

However, there are many divorces that are simply not amenable to mediation or the collaborative approach – if, for example, one of the parties suffers from a mental disorder, addiction, or is completely unwilling to be reasonable—or is stalling as a tactic.  In these cases, traditional litigation is the answer.  If so, it is imperative that you find a skilled and trustworthy advocate to represent you. 

WORD TO THE WISE: Two thousand years ago, Sun Tzu wrote in The Art of War, "Those who know when to fight, and when not to fight are victorious." This applies now. as then, to divorce. If you can settle satisfactorily, you have won.

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A good divorce attorney will go to court only when necessary and will maneuver the case into settlement mode as soon as possible.  Hiring a lawyer does not mean that you will go to trial, but that you have that option available in the event your spouse is completely unreasonable.  Court-imposed deadlines will also move your case along, which is particularly advantageous if your spouse is employing delay as a tactic or you are concerned that he is dissipating assets.