Bearing the above in mind, it is, therefore, often the case that clients are best off to wait as long as possible before embarking on the legal aspect of their divorce. There are circumstances, however, when speed is of the essence, for example, where one spouse is being harmed, or where children are suffering for whatever reason or where assets or money are in danger of being dissipated if time runs on. This is not meant to be an exhaustive list so it may be as well to check with a family law solicitor if you are unsure, however, when a lawyer tells you to take your time, you really should listen.
When you do decide to take time to allow things to settle a bit, attending counseling as part of that process is a very useful and good thing to do. Counseling can help you to keep focus and can also assist you to see your own part in the breakdown of the marriage whether you are the Walk Away or the Leave Behind. In the throes of anger and denial, it is very hard to contemplate this but it can often play a crucial part in recovery. Counselors are trained in managing emotion and so can assist you to see things more clearly and teach you techniques to help you manage your emotions.
It is important to know before you embark on anyone legal process, that there are several ways of going about your separation/divorce. I spoke about these briefly in the previous article on Phase 1 of the divorce process and mentioned them by name. The most important thing to be aware of is that there is that you can divorce/separate in many different ways and a good understanding of all of them will help you to make an informed decision about how best to proceed. The different ways that you can divorce, divide into those methods that come under Alternative Dispute Resolution (ADR) and those that are adversarial i.e., in the Court side of things. All of these processes, however, have a legal component so they come under the second phase.
Alternative Dispute Resolution embraces mediation in all its forms, managed negotiation and collaboration. Adversarial on the other hand takes in traditional negotiation between solicitors or between barristers and the actual hearing before a Judge and all that is involved in getting to that hearing date. The dynamic of a couple separating, the background to their marriage and family of origin history, child issues, financial issues, company or property issues can often determine as well as their personalities what type of alternative dispute resolution process might best suit them. Determining this requires a whole separate skill set all of its own and it also requires a couple who have processed through most of the emotional phase, though they do not have to be completely out of it even if that is actually possible, the more they have processed the better they will be able to work within the ADR spectrum.
In Ireland, all family law (adversarial) is conducted “in camera” which is a Latin term for privately. This means that most people have no idea of how hard it might be to proceed through the court system. When you combine this with the emotional phase, the experience can be really awful for many people. As a solicitor, I tell clients exactly what to expect i.e., how long the process can take with or without delays, the costs involved whether it is settled and at what point of the process and what costs are involved in going to a full hearing, what to expect from the system on the day of hearing etc., but I think most people cannot take this in as there is nothing in their experience to match. Sometimes going to court is the best option for a client but I would urge everyone to explore their options before proceeding in one direction. The problem is when you are angry or full of hate, the only option that might seem attractive is a court process because we are all full of television portrayals of courtrooms where mean and criminal types nearly always get their ‘come uppance’ and lawyers make inspiring speeches. The reality is far removed from this. Judges frequently have far too much on their court list on any one day to give individual cases the time they might like. Judges are never interested in inspiring speeches, they have to be saved for the jury and no jury will be involved in family court. Barristers are often juggling several cases on the one day and will be moving between one frightened couple and another trying if at all possible to settle their cases. Clients rarely feel they are getting the love and attention they want. Quite often there is nowhere to sit and no privacy and people are left standing around in small groups trying to negotiate for most of a day. This is exhausting for everyone and not conducive to good settlements. When your solicitor tells you all this and more at the beginning of your case, you are probably not able to listen and even if you do hear it probably don’t fully believe it and think he or she is likely to be exaggerating to dampen your expectations or to justify their big fee or whatever. The vast majority of experienced family law solicitors will do everything they can to try and settle their cases in advance of any court date.
The legal phase can take 12 to 18 months if the matter if fully contested and that is without undue delays. Delays arise when people don’t file their paperwork at the proper time and one or other has to keep going into court to seek sanctions to force the other side to comply. Financial disclosure is one of the biggest delays in the family law system. This involves each party to the proceedings making a full and frank disclosure of their financial situation to the other on sworn affidavit. With rare exceptions, few people are happy with the disclosure made and it can become a war of attrition serving mainly to prolong the agony.
ADR with dedicated clients and good management is much faster than going to court and less costly. You do not compete for attention when it is your time. The process can go as fast or as slowly as is needed and often the process itself can assist with the emotions and with the co-parenting issues which can move clients forward through the six stages quicker than otherwise. ADR itself helps parties to detoxify making some of their other adjustments more bearable.
Family law clients often articulate a need to have the legal part over before they feel they can get on with their lives. When the legal part drags on they get frustrated. They feel that they are stuck. This is often because they think that when the legal part is sorted everything will be over and the torture will end. Often, however, when the legal part is coming to a close, the other stages are only just beginning. Up to the time of divorce, there may be no experience of co-parenting as the parties are still in one house. Therefore, the making of a court order in relation to how the children are to be parented going forward may bring on the Co-Parenting Phase of Divorce. In addition, the granting of orders pertaining to property and finance may give rise to the first real experience for either party of the reduction in living standards which occurs when combined property and income is split bringing on the Financial Phase of the divorce. Often when property is sold or one party moves away this can lead to the Community Phase of Divorce and then we get to the final part which almost certainly comes after all the other parts are fully processed and that is the Psychic Divorce where the parties finally come to terms and accept that they once again autonomous beings.