Divorce Settlement or Resolution?

I sometimes talk about the difference between a divorce “settlement” and a divorce “resolution.” Over 95% of divorces probably end up in a settlement. Far fewer, however, end up with a resolution. As I think of it, a settlement addresses the narrow legally-defined issues for divorce and separation. However, a divorce resolution addresses the conflict as well as the legal issues.

Ask most family law attorneys about the difference, and odds are that they'll stare blankly. Pretty much all will be very familiar with clients who reached a settlement in their divorce. However, with a settlement, too often they return time and again for new post-divorce legal proceedings, such as issues relating to parenting (child custody and visitation), child support, spousal maintenance (alimony) or other family law matters.

Most divorce lawyers focus only on issues that are defined by divorce law, ignoring anything that cannot be addressed through the legal lens. The problem with that approach is that merely addressing legal issues often leaves the underlying conflict unresolved. And that unresolved conflict then festers. Yes, the legal issues in divorce are important; however, when conflicts are not resolved, they often create problems later. Addressing only the legal issues in divorce is therefore often an incomplete approach. You really don’t want an incomplete divorce.

When arriving at a divorce resolution, both the legal issues and the conflict are addressed as part of your divorce. Doing so creates a better divorce outcome, results in an outcome that has staying power, reduces any damage to important relationships, and reduces the likelihood of the need for divorce lawyer involvement in the future.

There is no doubt that a divorce settlement is an enormous improvement compared to not settling your divorce. Maybe a divorce settlement is all that can be achieved. However, resolution addresses the underlying conflicts. It means that the parties can leave the marriage with integrity and without added damage or ongoing conflict.

Not every divorcing spouse is interested in resolution, much preferring to holding onto their high emotions even though they cause nothing but pain. However, if you value the possibility of a resolution in your divorce, ask yourself two things:

1. Do the divorce lawyers and the other professionals working on your case have the awareness and skill set to increase the likelihood of reaching resolution in as part of your divorce?

2. Is the divorce process you have chosen well-suited to allow for resolution, and restructuring families and relationships without inherent collateral damage? My belief is that mediation and Collaborative Law are most suited for resolution, while conventional representation can normally only offer a settlement.

If a durable resolution in your divorce is consistent with your values, investigate the possibilities of a Collaborative Divorce or a divorce mediation with skilled divorce lawyers and other professionals who can support you with that option.
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Financial Challenges in Divorce

Divorce is often accompanied by financial challenges, including that the same total of income must now support two households. Decisions and choices that you and your spouse make during the divorce process will make those challenges easier or more difficult. Here are three common decisions that can have profound impacts on future finances:

Planning for Financing for a New Residence.  If purchasing or refinancing a residence for either spouse might be part of your divorce, it may be wise to delay filing the divorce with the court until the financing is handled. Filing with the court will likely have the unintended consequence of making mortgage financing unavailable until a final agreement is reached. The better choice – reach agreements before filing with the court.

Using Court Procedures Will Increase Your Expense. Court procedures can add enormous expense to your divorce, even if your case does not go to trial. Old-school divorce lawyers will often advise their clients to file motions with the court or to conduce formal "discovery" (information exchange), both of which are expensive procedures. When necessary, these can be helpful. However, they are overused and very expensive. Worse, such court procedures are likely to create a dynamic that will make reaching a satisfactory agreement less likely, because they are designed to create (or set up creating) a winner and a loser. Instead, explore alternatives that are likely to create better results, such as divorce mediation and Collaborative Divorce. 

Get Good Legal Advice. Failing to get good financial and legal advice can be costly. Divorce has major financial, tax, and legal implications. Good advice will often more than pay for itself. Part of finding good advice means seeking advice from professionals whose financial motivation is consistent with your own interests. For example, it may be worth hiring a financial advisor only for divorce planning with no prospect of selling financial products. Yes, such financial advisors will charge a fee, but their focus will be solely on providing you good advice, not selling product. Similarly, if you wish to seek a settlement instead of a litigated outcome, consider hiring a lawyer who will not go to court and who specializes in divorce settlements. Hiring a lawyer who specializes in divorce, and is known to be competent, is important; divorce is a true specialty, and those who do not practice divorce law regularly are unlikely to have the knowledge base to provide the best advice. Consider hiring a lawyer who is also a Fellow of the American Academy of Matrimonial Lawyers -- Fellows are required to be recognized as experts in the field and pass tests to demonstrate their expertise. No other organization provides such an objective and stringent review of divorce lawyer skills.
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