Divorce is a verb and, simply put, is the legal means by which to end one’s marriage.  It is how spouses “divorce” (the verb) themselves from each other as a joint union and become single individuals in the eyes of the law.  Another, more technical way to state it is that divorce is the legal dissolution of a marital relationship between two people whose marriage was “duly solemnized by a minister, clergyman or leader of the Society for Ethical Culture” and thereby constitutes the end to the couple’s marriage.  It is the final termination of a marital union and therefore legally terminating the duties and responsibilities of marriage between the two parties.

In New York, a couple cannot get divorced without the sanction of a court.  However, a couple can decide the means by which they will present themselves before a court for determination and dissolution of their marriage.   Some of the choices include litigation, mediation, collaborative or legal separation.  A couple who is legally married can end their marriage through a legal action presented to a court of law that ends the marriage.

A brief description of some of the options available are as follows:

   Litigation or a Litigated Divorce:  This is a forum that most people are “familiar” with and which has been popularized through television programs such as “The Good Wife” and movies such as “Kramer vs. Kramer”.  Each spouse hires their own independent counsel and every aspect of the divorce is decided through the court.  The cost of divorcing is without limit as it will depend upon your choice of attorney, the number of motions presented to the court, various court appearances, discovery including depositions, trial, expert witnesses, and how long it takes will depend upon adjournments, the court’s schedule and when the judge makes decisions about the questions presented to the court.

   Mediation:  Mediation is a form of alternative dispute resolution (ADR) and in this forum, you and your soon to be ex-spouse meet with a neutral third party, the mediator, who works with you to address and resolve all of the issues that need to be agreed upon to end your marriage.  Mediation is voluntary, confidential and flexible so you can work as quickly or as slowly as you both need to reach an agreement on all of the issues relating to your divorce.  It is your process and you determine the guidelines and parameters rather than the court, judges and attorneys in a litigated divorce.  The mediator is “neutral” and does not “work” for either spouse.  This means that the mediator cannot give advice to either participant and must remain neutral no matter what the situation.  When decisions are difficult to reach, the mediator uses his/her expertise to keep the lines of communication open, assist in brainstorming, reality checks and other tools to assist the couple in reaching decisions together.  Mediation is particularly valuable where the couple has children and will need to learn a new way to communicate with each other regarding the children long after the marriage is ended.

  Collaborative Divorce:  One of the newest methods of alternative dispute resolution (ADR) in which each spouse retains their own counsel and both attorneys and both spouses sign an agreement and commit to achieving a negotiated outcome.  All parties in this method agree not to commence a lawsuit or litigation during the process; and the attorneys also agree that if an agreement is not reached, the attorneys involved agree to withdraw from the process and will not participate in any ensuing litigation.  The role of the attorneys in this process is to manage the conflict and settle all outstanding issues in a non-adversarial manner.  The spouses together with their attorneys work collaboratively to resolve all of the issues in their divorce.

  Legal Separation:  Some couples may not be 100% clear that they should end their marriage and instead may choose to separate with the hopes that time will tell whether they will stay together or end their marriage.  When a couple separates, it is best to put it in writing in a separation agreement.  The agreement is a detailed contract that should be prepared by attorneys.  In the agreement, the spouses agree to live separate and apart and it contains their respective rights and duties as husband and wife with respect to distribution of property, child custody, visitation rights, support payments and all other matters pertaining to their marital separation. 

The foregoing is simply a brief description of various methods meant only to introduce you to the ideas and concepts.  Ultimately, when deciding to divorce, one should consider the different forums available and choose the one which is most appropriate for their situation.  Every family is different and the manner in which a couple gets divorced needs to work for that particular family.  There is no right or wrong choice.  It is right or wrong for the family that matters most.