Couples rarely come to the decision to divorce at the same time. On the contrary, the decision is usually that of one of the parties alone. In many instances the other party is not even aware that a decision was being contemplated at all and is taken terribly by surprise. This is not to suggest that the initiating party is acting lightly, and without forethought. Quite the contrary, he has probably been seriously contemplating his decision for at least a year before he actually acted upon it. However, though his dissatisfaction with his marriage is very real, there are, nevertheless, strong dependencies that still tie him to his home, to his children, and even to his spouse. It is only because the price that he has to pay to hold on to the benefits of the marriage has simply become too great that he has finally concluded, usually very reluctantly, that he has no other choice. The decision to divorce is thus one of the most difficult decisions a person will ever have to make and, understandably, it takes a great deal of time to come to it.
KeywordsFormal Material Initial Meeting Final Agreement Legal Question Suggested Change
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- 1.In the past, and particularly when divorce was grounded in fault, lawyers habitually admonished their clients not to leave their homes. The rationale for this was that their act of doing so could be used by their spouse as the basis for an action for divorce based upon abandonment. Whatever sense this advice may have made in the past—and it was rarely carefully thought out, and didn’t make very much—there is little logic in it today, under modern divorce laws, where fault, particularly the very innocuous fault of leaving one’s spouse, will have little if any effect upon the final outcome in most jurisdictions. The most that it will do will be to permit the party’s spouse to sue him for a divorce, which is, after all, what he wants anyway. Nevertheless, a mediator may still find himself confronted with someone who has been given this advice and is very intimidated by it. The one instance where this advice made sense, and still makes sense, is where custody is in issue, as the party who leaves his home and children seriously undermines his chances of obtaining custody of the children at a later date.Google Scholar
- 2.A telephone information sheet, which may be used by a mediator for this purpose, will be found in the Appendix, on page 444.Google Scholar
- 3.A sample copy of just such a description for a therapist-attorney team will be found in the Appendix, on page 446.Google Scholar
- 4.Sample copies of these questions will be found in the Appendix, on pages 443-459.Google Scholar
- 5.The Internal Revenue Service has prepared a number of publications that can be extremely helpful to a mediator, and to the couple themselves. See, e. g., publications 501 (exemptions), 503 (child and dependent care credit, and employment taxes or household employers) and 504 (tax information for divorced or separated individuals).Google Scholar
- 6.In this connection, see Caring About Kids: When Parents Divorce, published by the U.S. Department of Health and Human Services, Public Health Service, Alcohol, Drug Abuse, and Mental Health Administration.Google Scholar
- 7.See, e. g., Emily Hancock, The Dimensions of Meaning and Belonging in the Divorce Process, 50 Am.]. Orthopsychiatry 18 (Jan. 1980).Google Scholar
- 8.All too often, adversarial attorneys’ concern for the risks involved in an agreement that their respective clients are attempting to conclude tends to undermine the very possibility that an agreement will be concluded between them at all. This is not particularly significant in nonmatrimonial matters where, for example, what is at issue may be a piece of property that one of the parties wishes to buy and the other party wishes to sell, as the only penalty for their failure to be able to conclude an agreement concerning its sale is that they each will have to look around for someone else to do business with. This, of course, is not the case with separating and divorcing couples. If they are unable to reach an agreement by one means, then they will be forced to reach it by another. Thus, the conclusion of an agreement between them legitimately becomes an end in itself. Viewing the situation as he does, a mediator, of course, understands this. Unfortunately, being disposed by training to concentrate more on the question of risk, and the reduction of that risk, rather than the conclusion of the matter (in this case an agreement), there is always the danger that adversarial attorneys will lose sight of this. Again, that is particularly unfortunate in matrimonial negotiations.Google Scholar
- 9.Address by Chief Justice Warren E. Burger on January 24, 1982 at the midyear meeting of the American Bar Association in Chicago as reported in the American Bar Association Journal, March, 1982, page 274.Google Scholar
- 10.A copy of a letter received by a mediator from one of the party’s attorneys and his answer to that letter will be found in the Appendix, on pages 458-459.Google Scholar