Alternatives to Divorce and Options for Separating
If you are having difficulties in your relationship with your spouse, it can help to know the different options that are available to you.
Marriage Counseling
Meeting with a marriage counselor can help bring to light any underlying issues causing difficulty in a relationship, and provide guidance to address those issues. Counseling can provide you with the tools to communicate with your spouse more effectively, provided you are both invested in the process. With time and effort, you and your spouse may be able to bridge the gap that has grown between you and continue with your marriage. Even if you are not able to rebuild your relationship, counseling can help you cope with the death of the relationship and prepare you for the future.
Separation
When a couple has been unable to resolve their issues, with or without the assistance of counseling, physically separating can be the next logical step. This will provide each party with his or her own separate space, even if they remain in the same house. Being separated can often bring a new perspective to the problems in the marriage, which can lead to reconciliation. Where the relationship remains broken, a separation will allow each side to work out the financial and logistical challenges that will have to be addressed as they proceed towards a divorce. Often an informal process, it can still be beneficial to write down the terms of any arrangements that are made, such as for paying bills, in order to avoid any misunderstandings.
Mediation
Using a mediator can be beneficial when parties who are seeking to separate would like to resolve one or more issues, but still want to work collaboratively towards a fair and equitable separation. The mediator does not represent either party, and while the mediator will provide general guidance, he or she will not be able to provide specific legal advice to either side. Both parties should still seek separate legal representation to ensure their rights are protected, particularly before entering into any legally binding separation agreement or stipulation.
Uncontested Divorce
In an uncontested divorce, one or both parties retain an attorney who will negotiate with the parties to reach an amicable settlement. While both parties should have their own representation, often one spouse will retain an attorney to draft a separation agreement and divorce papers based upon terms that the parties have negotiated between themselves. This can be a cost effective way to obtain a Judgment of Divorce, but requires both sides to work together in reaching an agreement.
Contested Divorce
Where the parties are simply incapable of reaching an agreement for whatever reason, the divorce will have to proceed through the court system. Both parties should have their own lawyer to help guide them through the process, which can be very complex and confusing. Ultimately, if the parties are not able to reach a resolution a trial will be conducted and the decisions will be made by a Judge.
Legal Separation
Although not often utilized, legal separation is an alternative to a divorce. The legal process is the same, in that you will appear in court and go through discovery in order to establish the parties’ assets, liabilities and incomes. Either an agreement will be reached or a trial will be held to reach all final determinations. Instead of a judgment of divorce, however, the court will sign a judgment of separation, with the parties remaining married. A separate court action will then have to be commenced to obtain a judgment of divorce whenever the parties are ready for that step.
This is not intended to be legal advice. You should contact an attorney for advice regarding your specific situation.
Martin Butcher is senior counsel with the firm and practices Matrimonial and Family Law.
He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.
