What on earth is a gentle divorce? In many people’s minds divorce has two extremes. There’s the ‘conscious uncoupling’ and then there’s the all out war. But what about the in-between version of these two extremes: gentle divorce.
In Australia, getting a divorce requires a couple to have been separated for at least 12 months. After that 12 months the couple can come to their own arrangements about property settlement and child custody, but if they can’t come to an agreement, they need to go through a mediation process. Mediation is required prior to matters being dealt with by the court, and it will save each party time and money to use the mediation process to their advantage. Sometimes mediation fails and then court proceedings ensue if a couple can’t work out a settlement through mediation. But what if there were a gentler way through divorce rather than heading straight to a litigious divorce? Well – there is. It’s a form of gentle divorce, known as collaborative divorce.
In the United States, litigious divorce has been the norm for a long time. “People still don’t know about collaborative divorce here,” said Denise Wennogle, a New Jersey family law attorney and mediator who likes doing collaborative divorce work. “The challenge is getting the word out to the world that your divorce does not have to be a War of the Roses. . .There are people who believe only an adversarial relationship works in a divorce,” Wennogle added. “I do not.”
Last autumn, Gov. Christie signed the New Jersey Family Collaborative Law Act, making New Jersey the ninth of 11 states to legitimize a practice touted by proponents as more speedy and less costly than traditional divorce. “We all quickly realized that divorce is not just a legal event,” said Talia Katz, CEO of the International Academy of Collaborative Professionals which has 5000 members in 24 different countries. “It’s an emotional event. It’s a financial event.”
This is where Australia leads the way. By requiring mediation to be the first port of call, collaborative law is a close companion for a gentle divorce. This is what Sandra found to be the case when she decided to divorce her husband after 19 years of marriage. She was at a point where she felt the relationship had become toxic and could not go on. What troubled her, though, were the high stakes and so much uncertainty about how things would be settled. She did not want to lose the family home which her two children had always known. “I knew we needed to separate,” she says, “but I had no idea how to do it. I thought it meant getting a lawyer and fighting it out.”
But that’s not what happened. Instead, with the help of Melca, she and her ex chose to go down the path of collaborative divorce. Melca is an organisation that works with couples towards a civilised separation and gentle divorce. They are a group of collaborative professionals (including experienced law, financial planning and psychology specialists). It is a service that provides legal, financial and relationship counselling for both parties, with the aim of getting a result that benefits the entire family unit, not one of the warring parties at the expense of the other – in Sandra’s case, it meant she was able to trade her superannuation for rights to the house. Collaborative divorce may not always be an easy process, but it works for those who are wanting to minimise conflict as they separate from their spouse.
Collaborative divorce was certainly the gentler option for Sandra and her ex. She is still in the family home and still works at her former husband’s company. He lives nearby and they work closely together to give their children as much stability and normality as they can. “People think we’re still friends,” Sandra says. “We’re not, really, but we’re not enemies either. It’s functional and it works for the kids.”
Marguerite Picard, the founder of Melca said, “I have a fundamental problem with the fact that when families break down we characterise it as a legal problem,” Picard says. “Mostly the problems families have aren’t legal. . .We’re focused on the things that families really need, and we try to do it with optimism and compassion. There is a lot of grief and anger associated with divorce, and how you go about it is a major factor in how you recover.”
Why Choose A Gentle Divorce?
Collaborative divorce, like mediation, also aims to keep divorce proceedings out of court. Collaborative practice can involve a whole range of professionals assisting the divorcing couple in resolving any disputes ‘collaboratively and cooperatively’. This group approach might include psychologists, financial planners, counsellors, mediators and the family lawyers. Each party will engage their own lawyer who practices collaborative law. The couple usually enters an agreement to not commence court proceedings. If one does so, then they will then be represented by different family law lawyers in court.
It is more expensive than mediation, especially because you have a group of professionals whose expertise is is drawn upon throughout the divorce process as you try to come to a settlement and agree on parenting arrangements. It is worth the cost if you have complex affairs to sort out that weren’t agreed upon during mediation, but you still don’t want to go to court. Going to court is the most conflict driven option for divorce and costs a lot more than money.
At Divorce Lawyers Brisbane, we believe that a gentle divorce is good for everybody concerned. Our family lawyers are dedicated to ensuring that divorce is as low in conflict as it can be to help you best as you move through the process. We offer a free, 10-minute phone consultation if you would like to speak to one of them. Please contact us today!