How do you make the decision to divorce? There is no hard-and-fast rule, no bright line to show a couple whether it is better to split or to try again to work it out. However, divorce mediation can be a time and place in which the parties consciously examine their options and test out various hypotheses before settling on a course of action. This pattern of “decide/analyze/implement” can lead to better, more informed decisions.
In divorce mediation, the strategic decisions often unfold in a non-linear fashion. Frequently, after brainstorming some possible options, the couple chooses one, and tries it on for size. That is, they make an interim or temporary decision, gather more data to confirm that it fits their circumstances, and then either confirm commitment to their choice, or investigate another option. They repeat the pattern of decision, analysis, and searching for other options until they find one option that they can settle on as suitable for parties.
It is not uncommon for there to be a mis-match between the spouses concerning just about everything, including whether the marriage should end. Even if both parties admit that the marriage isn’t working, perhaps there is at least one good reason to stay married, such as providing insurance for a diabetic spouse. In such cases, mediation is usually the best process to use because it allows the parties the flexibility to consider various options and then choose the option that works best for them.
What does this decision look like? Let’s take a hypothetical couple, Pete and Mary. These are composites of clients; resemblance to living individuals is accidental. Pete is in the information technology industry. When he works, he makes a lot of money, but he is not presently working and is getting discouraged. As part of his depressed mood, he eats too much and that means his diabetes is not well-controlled. Mary is a middle-manager in a small city. She has a relatively modest salary but decent health benefits and a defined-benefit pension. She thinks her job is safe for now, but next year, if budget cuts continue, her job could be in jeopardy. They refinanced their home to pay for college tuition for their two children, so that their home is now “under water” – they owe more than it is worth. Friction between Pete and Mary has been building for a couple of years. They both acknowledge that something needs to change. But divorce? To Mary, it is unthinkable. Their first decision is to decide if mediation makes sense for them.
Decision #1 – Should Pete and Mary mediate or choose another option?
Pete and Mary contact a mediator for a free consultation, in which they learn more about how mediation could help them to sort things out. Their mediator also provides an overview of other options such as doing everything themselves, using lawyers for a collaborative process, or retaining lawyers for scorched-earth litigation. They go home, discuss it, maybe call some lawyers to get information on legal fees, and quickly decide to commit to mediation. In other words, they make a tentative decision, gather and analyze more information, and then implement their decision.
Decision #2 – Should Pete and Mary choose a legal separation or a divorce?
At this point, neither Pete nor Mary is interested in re-marriage, so they are both open to the idea of a legal separation as well as a divorce. One advantage of a separation might be that Pete could stay on Mary’s insurance policy if they are separated rather than divorced. One disadvantage of a separation is that if either of them meets someone else, they will have re-file their separation as a dissolution of marriage, and pay another filing fee. Also, some insurance policies no longer cover spouses who are legally separated. Once the judgment of separation is final, Mary’s insurance through her employment may not cover Pete. Different companies have different policies on insuring separated spouses, and changes in federal law may come into play as well. On the other hand, Mary really wants to help Pete keep health insurance as long as possible. Before making a final decision, Pete and Mary need to get more information about how long Pete can be covered through Mary’s employment.