While modern day divorce is certainly different than it was 25 years ago, going through a divorce will still be one of the most stressful and emotionally painful times in a person’s life.
There are a few things to keep in mind when counseling clients who are going through a divorce today. For one, courts are overcrowded. While most couples want their divorce to be resolved quickly, this rarely happens. Inevitably, a couple will remain at the mercy of the schedule of the court regarding how quickly their divorce will proceed unless they are able to reach an agreement before going to court to have a judge decide.
The opportunity for these agreements often comes during the process of mediation. Mediation is a required step for all couples moving through the divorce process in Colorado and, from the vantage point of an experienced divorce attorney, it is often the most important step.
When a couple cannot reach an agreement in mediation, they hand over to the court the responsibility to make a decision regarding their assets, liabilities, and most importantly, their children. What most couples fail to realize is that judges see several cases each day and have hundreds of cases on their docket. They do not have the time or ability to be abreast of everything that goes on in each case.
I always tell clients “no one knows your marriage, your children, or your divorce, better than you, least of all a judge who only knows you through court pleadings.” Leaving every decision up to the court often results in outcomes that are not what either party wants. Helping clients find the path of least resistance in their divorce will likely mean helping them understand that courts are bound to providing a “cookie cutter” decision, which might not fit their circumstances. In mediation, however, the parties can make their own agreement, and tailor it to fit their needs, which would likely be outside a judge’s purview to order.
Oftentimes, mediations fail because people “want their day in court” to get “justice” or vindication for what happened in their marriage. However, in Colorado, divorce is a no-fault process. That means that while one party may have been unfaithful or may be the “reason” why the marriage failed, this information is usually irrelevant in any court proceeding and most judges will not entertain arguments made that include these facts.
Further, when it comes to the inevitably difficult decision of dividing parenting time, modern parents must remember to be realistic about what they want. Sometimes, people are stuck in the mindset that one party will have primary custody of the children, while one party may only have them every other weekend. Today, courts are likely to order equal parenting time to each parent. This may not be the best course of action considering the American work week is generally a long one, and a party who works 70-80 hours a week may not be in a position to have their children as much as their spouse, who works less. Custody arrangements decided in mediation often yield a much more creative and practical agreement than what a judge will order.
The pressures of life can be overwhelming for a parent going through divorce, and the same stressors can trickle down to their kids. When a couple is able to finalize their divorce outside of the courtroom, they will inevitably save money, but more importantly, the benefits of a custom-made divorce settlement agreement will help their kids, who will have a parenting schedule that is far more conducive to their success and happiness.
While there will always be divorce cases that end up in court, considering the busy dockets and high expense of litigation today, a couple who can settle their divorce in mediation will often reap the benefits of an agreement that was tailor-made to fit their lives. Helping clients understand the importance of compromise and creative problem-solving is an important role that attorneys and other professional can play in the divorce process..