Often, I am presented with the question, do I need to have a lawyer in my divorce? Can I represent myself? Or, why do I need to use a mediator? My spouse and I can work these issues out ourselves. Well, quite frankly, if you could just work it out with your spouse, you probably wouldn’t need to get a divorce. But it doesn’t take Sherlock Holmes to discover that Divorce is an emotionally charged process. Anger, resentment, disappointment, regret and sadness lead many people to seek revenge against their spouse in a divorce proceeding. Therefore, I always suggest having a lawyer to 1) put things in perspective, 2) inform you of your rights and 3) act as a buffer between you and your spouse.
For example, I had a client who spent over an hour on the phone with me to ‘discuss’ a $30 discrepancy in a check from his soon to be ex. The time spent on the phone cost more than 10 times the discrepancy. He got my bill. He saw the light. More important, he then understood what I had been preaching about perspective. A divorce is not about winning. It is not about revenge. Its about creating a fresh start. Through mediation or litigation, our focus is on your best interests to get to that fresh start.
It is not about ‘caving’ or ‘giving up’ something. Its about focusing on your interests and values versus focusing on your position. Let’s take a real simple example. Your getting divorced and you and your spouse have equal 401K accounts, no kids and a house. Let’s say the house has $200,000 in equity and you are entitled to 50% of that equity. Your spouse wants to stay in the house for another 2 years, but you want to sell it and take your share of the money. Your spouse can’t buyout you out for 2 years.
If we were in litigation, we would seek to have the court force a sale of the property. Not only would be that there be legal expenses for each side, but if the court orders an auction to sell the property, the value obtained at an auction would be well below the real market price and would further reduce your equity. If the court ordered the property to be marketed to be sold, any real estate agent representing the buyer of the property would do their due diligence and discover the property was under an order to be sold. The result would be to drive the price down.
But let’s say we focused on the interest of both parties. Perhaps a solution would be for you to take an equity line of credit on the property to pull out some equity, or perhaps negotiating a higher percentage to the property to compensate you for waiting two years to obtain your share of the equity. These (or other creative scenarios) options could satisfy both parties, and satisfy both without a deterioration of the equity, dealing with stress and dealing with more animosity.
Solutions like this happen every day in mediation. Solutions happen when you take a step back, gain perspective and re-align the situation with your interests and values. Lawyers and mediators help you gain that perspective.
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