By Linda Chodos
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Buffalo, NY – After thirty years of legislative delay, New York State has finally entered the 20th Century by adding a no-fault basis for dissolving a hopeless marriage. In brief, the new law will allow parties who believe their marriage has permanently broken down, to be granted a divorce on that basis alone. It will end the practice of having to dredge up nasty complaints, exposing personal history to public record, in general, making an already bad situation worse by forcing the assignment of blame.
This is all good news. However, while this new law may be liberating for those averse to using more draconian grounds as the basis for obtaining a divorce, in some ways, the new law has received praise for too much. I have never found that grounds presented a major obstacle to moving forward IF the parties were willing to work out a settlement. The real issue in any separation or divorce is HOW the couple wants to arrive at a final agreement.
The new law specifically states no divorce will be granted to anyone until all of the issues have either been resolved by the parties or determined by the Court. The issues listed in the law are the distribution of all marital property, the obligation to pay child support, the obligation to pay spousal support, parenting the children, and the payment of legal fees and expenses.
So, we are back to the critical question: How do the parties want to resolve these issues, for no divorce will be granted without a resolution. There are three viable options: Mediation, Collaborative Law or Litigation.
Mediation has been available for many years to assist parties in resolving conflicts in a way that both parties believe is fair. In many States, mediation is mandated for all divorcing couples before they can proceed to litigation.
The reputation of mediation as a constructive process for the resolution of difficult issues has steadily gained credibility and popularity in our community over the past ten years as more and more people come to understand its benefits. The cost of mediation is in most cases, dramatically less than if the parties choose to litigate. It is private and confidential. The parties have complete control over the outcome, for no rational person would agree to a result if they believed they would be better off going through the Courts. And my favorite selling point of the benefits of mediation is that the parties have a much better chance of having a productive and respectful future relationship when they have the opportunity to discuss all aspects of their settlement in detail, with time to carefully weigh their options and individualize a plan for their own futures. I should also mention that throughout the mediation process, both parties are free to consult an attorney for advice at any point.
Mediation as an alternative to the Courts is not the only constructive option. There is also a process known as Collaborative Law, which allows parties and their attorneys to work out a settlement in a constructive, private and confidential manner and without any Court involvement. The Collaborative model involves both parties, their attorneys and any experts they want to consult, working together as a team. Collaborative Law has many of the advantages of mediation. This alternative is perfect for those people who feel the need for on-the-spot legal guidance at the negotiating table.
So with our new laws liberalizing the grounds for receiving a divorce and with the civilized options of Mediation and Collaborative Law available, the sad reality of divorce no longer has to conjure up the specter of financial and emotional ruin and those who need to change their lives through divorce can help usher New York State into the 21st Century where it belongs.
Linda Chodos is a Mediator and Collaborative Attorney with offices in Amherst.