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The Advantages of Collaborative Divorce/Divorce Mediation over Going to Court
In both mediation and collaborative divorce, the parties maintain control and make all the decisions, instead of relying on a judge or court commissioner to do so. Issues are resolved much sooner, at a far lower cost, and with much less stress. The resulting Marital Settlement Agreement is the product of a careful and deliberate process of decision-making by the parties themselves, guided by an attorney or attorneys. This contrasts with the typical court divorces scenario, where the parties and their attorneys squabble about each issue for a year, or several years, until, under pressure of the impending trial, negotiate a settlement consisting of a patchwork of compromises not satisfactory to anyone.
In collaborative divorce or mediation, the spouses control what values are considered in a collaborative atmosphere. Division of property, the mutual benefit and need for spousal support, child support that meets the entire family's goals, and a realistic and well thought out parenting plan are agreed upon. The thoughts, feelings and experiences of both parties are listened to, all issues are addressed with respect in an atmosphere of dignity, with the goal of creating separate lives after divorce with the assistance of legal, financial and mental health professionals, as necessary. By avoiding court fights over property, parental rights and support issues, the parties can preserve a relatively amicable relationship, which is especially important where there are minor children.
In court divorce, the sad fact is that children are often damaged by the divorce in ways that parents do not even suspect. See Helping Your Kids Cope With Divorce by M. Gary Neuman, L.M.H.C. Little attention is paid to the effect on the children as the parents gear up for courtroom battles. The children often become pawns in the parents' fighting over child support payments, and are pitted by one parent against the other to attempt to gain some advantage in the courtroom battles. By the end of a divorce court case, the parties are often more distrustful and hostile to each other than they were at the beginning. The prospect for good faith cooperation regarding future child rearing has been greatly diminished. Even if the case goes to trial, neither party gains any lasting satisfaction or vindication. What the court process produces is mainly stress and distraction from what is needed, rebuilding of relationships.
By contrast, in collaborative divorce or mediation, the court case is held in abeyance while the spouses participate in a series of private negotiation sessions facilitated by a trained mediator or their collaborative attorneys, in a calm and productive atmosphere. Avoiding the courtroom battles that characterize divorce litigation, the spouses work together to achieve a reasonable settlement that the whole family can live with. The interests of children are carefully considered as the parties work together to develop a co-parenting plan that will be most beneficial for all. The spouses are prepared for their new separate lives, developing a new relationship based on cooperation and good faith, and concern for the welfare of the children. Economic decisions are made in collaboration for the maximum conservation of family resources.
California divorce laws recognize that both spouses make valuable contributions to any marriage regardless of their employment. Property is labeled either "community property" or "separate property." Community property is all property, in or out of the state, that either spouse acquired during the marriage. Each spouse owns one-half of all community property. It does not matter if only one spouse worked outside of the home during the marriage or if this property is in only one spouse's name.
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