Getting Divorced Without Ruining Your Life: A Reasoned, Practical Guide to the Legal, Emotional and Financial Ins and Outs of Negotiating a Divorce Settlement

Overview

As a leading divorce negotiator and mediator, Sam Margulies has helped thousands of couples reach fair and amicable settlements. In this compassionate guide, now updated with vital information on changes in divorce law and norms, Margulies covers the legal, financial, and emotional realities of divorce in a straightforward, reassuring style. He takes readers through every step, from making the initial decision...

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Overview

As a leading divorce negotiator and mediator, Sam Margulies has helped thousands of couples reach fair and amicable settlements. In this compassionate guide, now updated with vital information on changes in divorce law and norms, Margulies covers the legal, financial, and emotional realities of divorce in a straightforward, reassuring style. He takes readers through every step, from making the initial decision to finalizing the agreement, including:

  • Why mediation is now the preferred way to divorce
  • How to avoid the conflicts that often occur after the divorce is over
  • How to negotiate successfully even when you are angry
  • How to manage step-family conflict in the aftermath of divorce

With examples drawn from real-life cases, Getting Divorced Without Ruining Your Life explains how to protect one's own interests and negotiate a stress-free, enduring agreement that allows both partners to embark on a new life.

For the hundreds of thousands of couples who divorce each year, here is a reasoned, practical guide to the legal, emotional, and financial ins and outs of negotiating a divorce settlement. Margulies provides expert advice on negotiating with one's spouse despite emotional pitfalls, and determining child support and alimony.

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Editorial Reviews

From Barnes & Noble
The Barnes & Noble Review
If you are in the process of getting a divorce, you’ll need the best guidance and support you can get. These things can come at a heavy price, both financially and emotionally, but they don't have to. Sam Margulies, Ph.D., J.D., has decades of experience in the field as a top divorce attorney and mediator, and in Getting Divorced Without Ruining Your Life he shares his knowledge and insight in order to help you have a "good" divorce -- one that will leave you and your family as financially and emotionally sound as possible.

In the first half of the book, Margulies takes you through the steps of getting ready. By using real-life cases as examples, he shows how getting off on the wrong foot when a divorce is initiated can lead to huge attorney fees, years of deadlock in the legal process, increased bitterness between former partners, and resentful children. By playing an active role in your divorce you can avoid these pitfalls. Playing an active role means that you take responsibility by doing the following: Express your feelings in a healthy manner and don't "act out"; educate yourself on the divorce laws of your state; seek compatible, professional help (a therapist, lawyer, and/or mediator) to guide you through the process; and set an intention to reach a fair and equitable settlement agreement with your partner.

This book will teach you how to:

  • Choose the right attorney and mediator for your needs.
  • Handle the emotional crises that accompany divorce.
  • Negotiate effectively with your former spouse.
  • Decide what form of custody is best for you and your family.
  • Budget and assess your financial needs.
  • Manage postdivorce conflict.
  • Deal with stepparenting.
If you want to save yourself time, money, and a lot of heartache, prepare and empower yourself for a "good" divorce. (Jennifer Forman)
From the Publisher
M. Gary Neuman author of Helping Your Kids Cope with Divorce the Sandcastles Way Clear and practical advice on important issues facing divorcing couples. Offers a valuable addition to the literature.

Sanford L. Braver, Ph.D. author of Divorced Dads If your marriage is ending, this revised edition can virtually save your life, as well as your child's. In pointing out the pitfalls of the adversarial system of divorce, Sam Margulies provides excellent advice concerning a far superior alternative: mediation. He arms the reader with everything you need to know to achieve a fair, successful, and civil dissolution.

Constance R. Ahrons, Ph. D. author of The Good Divorce Sound, helpful, and practical advice from an experienced lawyer/mediator. If you're going through a divorce this book should be on your reading list.

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Product Details

  • ISBN-13: 9780743206419
  • Publisher: Touchstone
  • Publication date: 12/28/2001
  • Edition description: REVISED & UPDATED
  • Pages: 368
  • Sales rank: 520,598
  • Product dimensions: 5.50 (w) x 8.50 (h) x 1.00 (d)

Meet the Author

Sam Margulies, Ph.D., J.D., teaches and practices mediation in Montclair, New Jersey, and Greensboro, North Carolina.

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Read an Excerpt

Chapter One

MAKING CHOICES

PAUL AND LIZ

Paul and Liz have been married for nineteen years. After taking off fourteen years from work, Liz recently resumed her career as a supervisor in a bank. The couple's children, ages fourteen and twelve, no longer required Liz's full-time attention and she was bored staying at home. Liz liked having a life of her own again and enjoyed the new friends she made at work.

Paul was unhappy with the change. He had just been promoted to a top administrative position in the insurance company where he worked and a large pay increase came with the promotion. At last he felt able to give up the extra job he had long held to make ends meet, and to spend more time with his family. But now that he had time to spend with Liz, she had neither the desire nor the time to be with him. He was furious. He resented being excluded from her new friendships and didn't like it when Liz went out after hours with her colleagues. He was also angry that she spent her income as she pleased. Paul, who had always had a hot temper, frequently ended up in a rage when he fought with Liz. Over time, Liz responded by growing ever more remote, while Paul became even more sullen.

After a year of this unhappiness they consulted a therapist suggested by one of Liz's friends. At the first session Liz told Paul and the therapist that she really wanted a divorce. "I've been unhappy for years with Paul but have never felt that I could do anything about it. When the kids were younger and I couldn't work, I couldn't even think of divorce. But now I'm enjoying life for the first time in years and I realize how unhappy I've been. I'm fired of Paul's rages and I'm fired of Paul always having to have his way about everything. He's a bully, and I've had enough. He belittles me and my friends, he belittles the kids. The only way is Paul's way. I don't care any longer what he thinks, I've had enough and I want out."

Paul was stunned by Liz's outburst. He thought they were coming to counseling to improve their marriage. He had hoped the therapist would help Liz see how her new life was hurting the marriage and help restore things to the way they were before. He certainly didn't want a divorce. All of a sudden the whole thing seemed like a big setup. Liz had never intended to fix things. She had lured him to counseling just to make it easier for her to break the news to him. He felt betrayed and he was furious. "You lying bitch," he screamed, "all you've ever done is lead me on. Do you think you can walk out on twenty years just like that? Well, I'm going to fight you all the way. This is all because of your new friends. See if they'll help you now." Although the therapist tried to calm him down, Paul was so agitated that he just walked out.

For two days Paul brooded, refusing to talk to Liz. She tried to talk to him. She suggested that they try a separation to see if being apart improved things. When Paul asked what she had in mind, she suggested that he move out temporarily. "Maybe if we were apart for a while, I might change my mind." He immediately concluded that this was another ruse and that she was just trying to get rid of him. Once he was out of the house he knew there would be no getting back in. If she wanted to leave she could, but she wasn't going to get rid of him like that. Liz responded that she was responsible for their two daughters and that he could never cope. She felt that the obviously sensible decision was for him to leave so she could stay in the house with the kids. "So I'm just supposed to leave my family and my home and move into some flea-bitten apartment while you keep everything and live on my money? How stupid do you think I am?" he replied. "I'm not going anywhere."

Paul and Liz are almost certainly headed for divorce. The events leading to Liz's decision to divorce are not unusual. One partner invariably reaches the decision before the other, but there are many variations on the theme. In this case Paul is surprised, even though the warning signs were there for a long time. The outcome would not be much different if they had spent six months in counseling before Liz declared that she wanted out. It would not even be much different if Liz were having an affair, or if it turned out that Paul had had an affair years ago and that Liz had suspected or discovered it. Or Paul might have been bored with the marriage and stayed because of inertia. There are a hundred ways that couples reach the decision to divorce.

If you're reading this book, you have probably decided that you are getting divorced. Maybe the decision is yours, maybe it is your spouse's, or maybe you reached the decision together. The important fact is that you are going to divorce, and, like Paul and Liz, you have some important choices to make.

CHOICES

The choices concern the manner in which you will divorce. Will it be bitter or civilized? Will you have an intense adversarial divorce, or will you have a cooperative, even amicable, divorce? Will you attempt to vindicate the past or will you use your resources to build your separate futures? Will your children suffer emotionally or will you minimize the impact on them? Will your divorce be a mess or will it be a transition to new and better lives for you both? In other words, will you choose a good or a bad divorce?

Many people will argue that you do not have such choices. It's a matter of luck, they say. They will tell you that divorce causes so much bad feelings and anger that there is no way to keep it under control. Its just something that you have to survive and if you're lucky, you will not be too hurt by it. On the other hand, it could ruin your life. However, good divorce or bad divorce is not a matter of luck: The outcome is very much subject to the choices you are about to make.

COUPLES DECIDE AND COUPLES DIVORCE

This book will help you and your spouse make the decisions required to prevent your divorce from ruining your lives. Your divorce does not have to be a disaster. Painful though it is, successful divorce can help both of you to begin new lives that offer a second chance at successful relationships. You are ending a relationship because, in some critical ways, it has not succeeded for at least one of you. There will be new relationships and new opportunities ahead. You can enhance these opportunities or you can destroy them. You can use your economic and emotional resources for the benefit of yourselves and your children or you can squander them in battles in which, ultimately, you all lose. You can help your children come out of this difficult period with two effective parents or you can turn them into emotional orphans.

You will make these choices as a couple. Remember, until you are successfully divorced, you are still a couple. Legal ties make you a couple. Economic ties and — yes — even emotional ties make you a couple. Do not believe that because there is anger or distrust or sadness you are not emotionally connected. Fighting is often a way of staying together. Some people remain connected through fighting for years after a divorce.

You are about to begin the final task of the marriage: negotiating a decent end of your relationship. How well you perform this difficult task in large part will determine how the divorce turns out.

Divorce is a process, not an event. During the process of getting divorced you can choose to treat yourselves respectfully or you can choose to treat yourselves with contempt. The important thing about these choices is that you can only make them as a couple. Couples get divorced, not individuals. One of you can choose a bad divorce; but only both of you can choose a "good" divorce.

If one of you engages in war, it is very difficult for the other not to retaliate. In divorce, few partners "turn the other cheek." One of you may want an amicable divorce but may believe (correctly or not) that the other is too angry or too vindictive to make it possible. This is a particularly trying time because you are separated and single on one level, but still married and together. In this time of confused and mixed signals, it is easy to offend each other.

You are neither clearly together nor clearly apart. If you were capable of unlimited cooperation, you would probably stay married. But you are capable of limited cooperation, and this is enough to get divorced decently. It is this residual capacity that enables you to choose, as a couple, the manner in which to end your marriage.

WHO SHOULD READ THIS BOOK?

Ideally, both husbands and wives will read this book simultaneously. Certainly, if you are going to negotiate a settlement agreement along the lines suggested in it, you both need to read it.

However, this book is also intended for husbands and wives separately. The probability is good that if you are the one who bought the book, you are also the one who is initiating the divorce. As we will see later on, there is a great difference between the way the initiator and the non-initiator approach the tasks of divorce.

One of the most critical issues in shaping a good divorce is timing. It may be that your spouse will benefit from this book and will actually read it. But right now he or she may not be ready. If the book accomplishes nothing more than to give you a realistic sense of timing, it will have been worth reading. So do not be discouraged if your wife or husband is not yet ready to join you in cooperative problem solving as you work toward a divorce. What you learn here may provide you with the patience to wait the few months that might be necessary before your spouse is also ready.

WHO THIS BOOK IS FOR

Most of the couples at risk for difficult divorce either have children, have been married for a long time, or both. Although the problems associated with children are an important part of this book, the chapters on emotional issues will still be useful even if your children are grown. This book assumes that you, the reader, belong to the economic middle class. The very poor do not have complex divorces, although they do tend to have terrible divorces. For the very rich, the economic problems that shape the middle-class divorce are not present. Much of the book focuses on ways to master the problems associated with the economic retrenchment required by middle-class divorce. If money is not an issue in your divorce, the discussions of emotions and parenting issues will be relevant and useful, but the discussions of budgeting and support will not be applicable. I have written this book essentially for people who are not so fortunate that they can disregard economics.

IS GOOD DIVORCE POSSIBLE?

Perhaps it seems strange to talk about "good" divorce. Isn't all divorce bad? Historically, divorce has been viewed as socially deviant behavior and therefore a bad thing. It is generally regarded as an unfortunate event that leads to negative results like "broken homes."

But social attitudes have changed substantially in the past twenty years. Although no one feels that divorce is desirable in itself, we are witnessing a wide-ranging reassessment of divorce, stemming partly from its pervasiveness. Half of all marriages that occur this year will end in divorce. About 80 percent of the people who get divorced remarry and about 60 percent of the second marriages end in divorce. This means that about half our population experiences one divorce, and about a quarter will live through two.

In view of a phenomenon that involves so many, it is no longer accurate to refer to divorce as "deviant" behavior. Serial marriages have become as much a norm as marriages until "death do us part."

In fact, some family therapists suggest that we need a new way of looking at the family, one that recognizes divorce as a change that occurs to the entire family. The task, then, is to help all the family members through the divorce process as a family, not as isolated individuals each dealing separately with the changes of divorce. Divorced spouses would be counseled to accept their past experiences as a part of their personal histories. Divorced parents would be encouraged to use the divorce agreement to work out a way to cooperate in parenting, even though their personal lives will be separate.

I won't quibble over the validity of the term "good" divorce. What I am talking about, and what I believe you as a couple can choose, is a divorce that achieves legitimate and constructive goals for yourselves and your children.

A good divorce accomplishes three objectives:

* A legal divorce that ends the marriage within a reasonable time of the decision to divorce — without huge legal fees that drain the family's finances, and with a minimum of acrimony and fighting.

* An economic divorce that separates the marital partners into two distinct economic units so that assets and income are fairly distributed and economic sacrifice equally shared. (In this economic divorce, all members of the family will begin anew with about the same standard of living.)

* An emotional divorce that allows both partners to mourn the end of the marriage so that each can move on to new relationships. Properly completed, the emotional divorce leaves the former partners capable of cooperating as parents, behaving decently and respectfully toward each other, and embarking on new relationships without destructive baggage from the previous marriage.

A good divorce requires completing all three objectives. Of course, all three are interrelated and each step affects the others.

Paul and Liz, like all divorcing couples, will make their choices. They have a difficult road ahead and can easily make damaging choices. Liz must choose whether she will wait the additional months it will take Paul to come to terms with the divorce and to share the responsibility for it. Paul is just beginning the process of emotional divorce while Liz is well along the way. Each will have to choose whether or not to forgo the innumerable provocations that are temporarily gratifying but that make it impossible to negotiate, and each will have to choose whether or not to let the provocation pass when the other instigates it. Each will have to give higher priority to the emotional comfort of the children than to himself or herself. They will choose whether to fight a legal war of attrition or to negotiate an equitable settlement. Paul will have a harder time than Liz because he is not yet motivated to cooperate. But if he chooses to pursue his interests instead of his hurt feelings, he can succeed. There are no guarantees for this couple, as there are none for any divorcing couple. But they are by no means doomed to an ugly and vengeful divorce. If they make the right choices they can each achieve satisfying new lives within a few years.

NEW LIVES — SECOND CHANCES

The ultimate goal of divorce and the ultimate measure of how well you get divorced is the ability of all family members to move on to satisfying and productive new lives.

From the perspective of your children, your ability to cooperate as parents is the most important influence on their ability to adjust. Of course there are other factors, but without this, the children are in trouble from the beginning. If your children do not cope well, they in turn will make it difficult for you when you try to build a relationship with a new mate. Stepparenting is a challenge in the best of circumstances. But children still caught up in your unresolved divorce are guaranteed to wreck your next marriage.

On the other hand, if the two of you retain the ability to parent well, available research suggests that you maximize your children's ability to adjust in time. Judith Wallerstein's Second Chances documents the long-term difficulty of children's adjusting to their parents' divorces but states that parental cooperation is a critical factor in helping children overcome the devastation of divorce. Your cooperation is not required only for the "children's sake." It is the key to your own adjustment to the divorce.

Finally, if you divorce well, you give yourself the ability to understand what went wrong and how you contributed to the process. Santayana's dictum that "Those who cannot remember the past are condemned to repeat it" applies to marriage and remarriage. I have seen many people lay the foundation of their second divorces during their first. Bad divorces breed bad second marriages.

CHOOSING THE WAY YOU DIVORCE

Movies like Kramer Versus Kramer or the more recent War of the Roses that show divorcing couples battling it out in court reflect popular misconceptions about divorce. This image of divorce as an inevitable battle is based on an erroneous assumption: that divorcing partners are too angry and distrustful to divorce in a nonadversarial manner. Both our legal system, which is based on the assumption of opposing positions, and its practitioners present this as the only possible alternative. There is another choice.

Though there was a time when most divorces were resolved in court, and the only grounds for divorce were based on "fault," grounds like adultery or desertion, this is no longer true. Although the legal system continues to operate as an adversary system in which lawyers, as advocates, struggle to advance the cause of their respective clients, there is growing consensus that this adversarial system and the behaviors it encourages are not very useful for most divorcing couples. In fact, there is reason to believe that the current system of divorce survives more because it fits the cultural biases and economic interests of lawyers than because it fits the needs of divorcing families.

So you can follow convention and choose an adversarial divorce in which you surrender your future to a system that may or may not meet your needs — or you can do what was once unconventional but is now gaining popularity, by holding on to that control in pursuit of a nonadversarial divorce.

This choice is the greatest problem for Paul and Liz. Because he is hurt and frightened, Paul is inclined to make choices that will embroil them in war.

Adversarial divorce may seem more comfortable or "normal" in the beginning, but it is likely to be more damaging in the long run. Staying in control of your divorce leaves you in much better shape to live your life after the divorce. It may be more difficult in the beginning because it requires you to forgo much of the hostile behavior that usually occurs in the early stages of divorce: You must avoid much of what you want to do reflexively — like getting even — and concentrate on the difficult tasks of building a new life for yourself and your children.

What is important to keep in mind is that the choices you make now will determine the way your divorce turns out. As a couple, you can choose to control the extent to which you behave as adversaries. The fact that you are angry, sad, distrustful, or anxious does not prevent you from choosing.

I do not propose that you behave in a saintly or selfless manner. To the contrary, the most self-serving thing you can do is to choose to stay in control of a process that can defeat and hurt you when it is out of control.

NEGOTIATION AS CONTROL

In most cases, the product of the divorce is a negotiated contract called a "property settlement agreement" (sometimes called a "settlement agreement" or "property agreement"). This contract, signed by both spouses, reflects your agreement on economic issues like support and property division and child-related issues like parenting (traditionally referred to as custody and visitation). At best, the settlement agreement can be negotiated by the two of you with a minimal amount of professional help. I say minimal with great caution. You need help to understand the issues, gather and assimilate the pertinent facts, learn the applicable law, and negotiate fairly to resolution. Professional help may include the advice and help of lawyers, a mediator, accountants, appraisers, and psychotherapists. More help than is minimally necessary simply removes you from control and increases the chance that this will become someone else's agreement — not yours.

The other extreme is a settlement agreement that is hammered out at the courtroom door hours before your trial. You understand little of what goes into the agreement or why. You listen to your lawyer who's the "expert" and because it is his/her opinion you are paying for. In this setting, you are passive and dependent, like a child. You are the subject of the agreement, not its author.

The more active you are, the more the agreement will reflect your needs. The more active you are, the less you depend on your lawyer, and the lower your legal fees will be.

Remember, there is almost always a settlement agreement in the end. What varies is your role, what it costs you emotionally and financially, the time it takes to get there, the quality of the agreement, and its impact on your life after divorce. The greater your role, the more you are in control. The more you know and the better you negotiate, the better will be your agreement. If it is negotiated well, it will reflect your needs, your partner's needs, and your children's needs. It will be fair, it will use the available resources most efficiently, and it will maximize your chances of success in your new life.

The key to a good divorce is the quality of negotiation. Effective negotiation means you made choices that made it possible. The following choices must be made as a couple:

* Be active, not passive

* Acquire knowledge rather than depend exclusively on professionals

* Base your positions on need, not fault

* Negotiate in good faith, not bad faith

* Experience and express your anger rather than act it out.

This book will help you, as husband and wife, to negotiate an effective separation agreement by providing you with the information and the strategies you need to put that information to work.

UNDERSTANDING THE LEGAL SYSTEM

In chapters 5 and 6, I will explain the law governing divorce and the system in which it operates. By understanding the basic legal issues and the applicable laws, you increase your competence and control.

Divorce law is a creature of state government, so we have fifty different sets of statutes in the United States. However, while there are some important variations, state laws have quite a lot in common. Your first job is to become sufficiently acquainted with the law to ask questions and get answers from your lawyers and other experts. This is not as difficult as it sounds — remember, the object is not to make you a lawyer, but to help you use a lawyer's advice without giving up control. You also need to learn how to choose the lawyer who is right for you and, having made your choice, how to hold your lawyer accountable. I'll walk you through these processes in later chapters.

Learning about divorce law will also give you an understanding of how the adversary legal system works and the specific procedures that occur. You will understand where such things as pleadings and motions and grounds, etc., fit into the legal process. You will be able to tackle without anxiety potentially explosive concepts like custody because you will know what they mean.

Most people want to understand their rights and obligations so they will know what to expect. You will learn that these rights and obligations are often not precisely defined and can take many forms. The important thing to know is that when you approach them as a couple, you will shape the agreement you want according to your needs, and the legal system will be more than content to go along with you.

FAMILY ECONOMICS AND FINANCE

The second area of information you need concerns the money issues that are the subject of the agreement. The chapters ahead discuss economics from two perspectives. First, you'll see how to assess your family's economic resources and how to analyze income. You will examine both past and future income potential. You must identify and value the family assets so you can divide them. You must also understand the tax and legal issues that affect the division of assets and income.

I shall also address some of the larger economic issues that affect divorce, such as fairness in support and the impact on careers of time spent as homemakers. I'll talk about what money means in this society and how your feelings about money must be identified for successful negotiation.

UNDERSTANDING THE EMOTIONAL PROCESS

The third task of this book is to help you deal with the intense feelings that accompany the divorce. If you are like most couples, one of you wants the divorce more than the other. There is anger — even rage at times. You may feel depressed and humiliated, or you may feel a sense of relief that things long suppressed are now out in the open. It's a sure bet that husband and wife do not feel the same thing at the same time, and you may be very uncomfortable in each other's presence.

All these feelings and problems are normal. For most people, divorce is the most stressful time of their lives. The question you have to answer is: How you are going to let these feelings affect your ability to negotiate your settlement agreement? In time, anger diminishes. But the results of angry acts live on.

GENDER DIFFERENCES

Men and women experience divorce differently. They tend to have different emotional styles, different ways of coping with emotionally intense challenges.

Whereas women are more likely to acknowledge and talk about fears and feelings of vulnerability, men are more likely to deny or bury such fears. They feel that they must be strong, invulnerable, and impervious to pain. This means that men and women will often behave differently in response to similar problems. We shall look more closely at these differences later on. We shall also examine the different challenges faced by men and women as they attempt to adapt to the changes in living patterns that divorce requires.

It will be helpful to understand these differences. The more you understand about what you are feeling and what your spouse is feeling, the better choices you will make. If you don't understand, you can't make effective decisions.

HOW TO NEGOTIATE THE AGREEMENT

The first half of this book informs, equips, and empowers you to negotiate; the second half takes you through the process. First I will show you a strategic approach to help you meet your future needs by negotiating.

You will negotiate your agreement in stages, resolving each set of issues in turn, and you'll find that you are in agreement on more issues than you think.

It will be work. You must do your research, ask questions, get answers, and come to the negotiation prepared to solve problems. Along the way you will learn how to find effective assistance — lawyers to advise you, a divorce mediator to facilitate negotiations, an accountant, an appraiser or a good therapist — at the lowest possible cost.

If you stay with the work and stay in control of the process, your divorce will help you both get on with your lives. It is not an easy task. Divorce presents a complex set of problems, and constructive solutions require intense work. There are no easy solutions — only the illusion of easy solutions. You and your spouse can take control — or you can lose control. The choice is yours.

What about Liz and Paul? As you will see from the many couples described in the following chapters, it is possible for angry couples to choose decent, self-preserving divorce. The couples we will discuss are all real people, from real divorces, and I think you will know people just like them. They all had to struggle with the same issues you face now, and most of them did it successfully. I hope you will recognize many of your own feelings in the couples I have described and that you will realize that like them, you can choose a decent divorce.

Copyright © 1992 by Sam Margulies

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Table of Contents

Contents

Introduction to the Revised Edition

Part One: Getting Ready

one

Making Choices

two

Why Divorces Go Bad

three

The Emotional Crises of Divorce

four

The Economics of Divorce

five

What You Need to Know About Divorce Law

six

The Five Issues of Divorce

seven

Lawyers, Mediators, and Other Professionals

Part Two: Negotiating Your Agreement

eight

Negotiating with Your Spouse

nine

Negotiating Your Parenting Agreement

ten

Preparing Your Budgets and Assessing Your Needs

eleven

Negotiating Child Support

twelve

Negotiating Alimony

thirteen

Negotiating the Distribution of Marital Property

fourteen

Pulling the Agreement Together

fifteen

Managing Postdivorce Conflict

sixteen

Stepparenting

seventeen

Some Final Thoughts from the Coach

Index

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Introduction

Introduction to the Revised Edition

This book was originally written in 1990 and published in 1992. In the ten years since I wrote the first edition, some (although not most) of the thoughts I expressed in the original have changed, and there have been some small changes in the nature of divorce law. I have also worked with about 1,500 couples since 1990 and have a deeper pool of experience to offer. So I decided to revise the book to keep it fresh and up-to-date.

When I wrote the original I had only recently shifted my practice from a combined litigation and mediation practice to one in which I did mediation exclusively. I had begun a law practice in 1978 as a conventional divorce litigator. I had litigated several hundred cases as an adversary litigator and had gradually become disenchanted with the conventional divorce system. The divorce mediation movement was beginning to develop in the late 1970s and early '80s, and I was among the first lawyers to become involved. I started mediating in 1980. Over the next few years mediation grew from a small part of my overall practice to a large part. After three or four years I had had the opportunity to compare hundreds of litigated divorces to hundreds of mediated divorces, and I could not but notice the dramatic difference in the outcomes.

As a litigator I represented a husband or a wife while another lawyer represented the other spouse. These adversarial divorces typically took one to three years to resolve, depending on how adversarial they became. We almost always settled the case before the trial, though a few went to trial where a judge decided crucial issues about parenting, support, and property division. But in some 98 percent of the cases we negotiated a settlement, often at the courtroom door. As a mediator I worked directly with both divorcing partners, with their lawyers in the background. Most mediated cases were resolved within a few months. The cost for professional fees was typically a quarter of the cost of conventional divorce. Most important, the couples and their families seemed to do better afterward because the divorce process did not drain their emotional and financial resources.

Although I no longer litigate, the years as both litigator and mediator gave me a unique perspective. Lawyers generally see a case only through the eyes of one client, but mediators see the case through the eyes of both husband and wife. Mediating taught me how distorted the perspective of the adversary lawyer can be, and showed me how much unnecessary damage can be done by the adversary process. in this book I want to share what I have learned with divorcing couples so that they can avoid the worst aspects of adversary divorce and move on to new lives for themselves and their children as quickly and efficiently as possible.

Twenty years after I began to practice I am only more convinced that the present adversary system serves divorcing families poorly. Progressive change comes very slowly because judicial systems are very conservative, bar associations quite powerful, and legislators generally timid about taking on the bar. But we have seen some progress. When I first began to practice, the performance of the system with respect to domestic violence was nothing short of disgraceful. It took a great deal of prodding from women's groups, but lawyers, judges, and legislatures in most states finally became serious about protecting women from dangerous men and children from dangerous adults. This does not mean that domestic violence has declined very much, but it does mean that the response of the judicial system has improved. We have also seen some progress in the establishment of federally mandated minimum child support guidelines as well as federally mandated child support enforcement procedures. Although we continue to have major problems in this area, some of the more egregious abuses have been eliminated.

But overall, I think the divorce system has continued to get worse. Courts and legislatures continue to make divorce ever more procedurally complex. This is good for lawyers but bad for divorcing people. Legal fees in divorce continue to climb and divorce continues to take a very long time. In some states it can still take up to five years to get all the issues resolved. This is ridiculous for a process that should be completed in a few months. The same conclusions I reached ten years ago continue to apply. With a few notable exceptions:

  • Women still get the kids but not enough money.
  • Men get more of the money but too little of their kids.
  • The kids lose big. They don't get the money, and many of them, for all practical purposes, lose their fathers. Too many of them end up living with mothers who are broke and overwhelmed and harboring anger.
  • It is still impossible to look at the product of this system and not conclude that something is terribly wrong. In spite of all the expense, delay, and posturing, the legal system settles almost 99 percent of the cases before trial. With these numbers the entire system of adversarial divorce must be defined as a system of settling -- not trying -- cases. But it is an absurdly expensive, inefficient, and unfair way of settling a divorce.

The result of the last ten years of practice has only reinforced my view that mediation must become the primary way couples negotiate their divorce settlements.

Having now watched thousands of couples go through divorce, I have seen many who have done well and many who have done poorly. By doing well, I mean that the divorce ended an unhappy relationship and launched the couple back into the world as individuals equipped to cope and to build something new. The couples who did poorly are the ones who did not succeed in ending an unhappy relationship but simply found a new way to relate destructively to each other. To an interminable marriage they added an interminable divorce -- a divorce that became the primary influence in their lives and the lives of their children.

When I compare the couples who mediated their way to settlement with those who took a conventional route, the percentage of those who did well is dramatically greater among those who mediated. The postjudgment litigation rate -- that is, the couples who went back to court after the divorce was over -- is about 5 percent among those who mediated and about 50 percent among those who use the adversarial process. I regard mediation as clearly superior.

Over the years, I have learned a great deal from my clients. I have learned that most people, even those in very great emotional pain, are capable of making responsible choices when information is presented so that they can hear it. I have learned that most people suffer from major misconceptions about divorce and about how they should behave during a divorce. In fact, I have come to believe that most of what people do "instinctively" when faced with a divorce is wrong. On the other hand, couples can be taught to behave differently and, for the most part, can avoid self-destructive behavior when provided with adequate professional leadership. I have also learned that even though divorce can bring out the absolute worst in most people, divorcing couples are motivated to retain as much dignity as they can.

Consequently, I do not agree that bad divorces are simply caused by vengeful people, although there are people who are so self-destructive that they will make a mess of it, no matter who tries to help them. I have seen many cases where bad divorces were caused by bad lawyers. Many of those I regard as bad lawyers are considered competent by their peers because they exhibit the most aggressive postures and are "tough" negotiators. But they are bad lawyers because they pursue a mindless advocacy that exaggerates the worst in their clients and feeds the flames of anger and recrimination.

Many bad divorces are caused by the nature of the legal adversary system. I have seen numerous cases where strategic interventions by a mediator or an attorney avoided what was sure to be a bloody war. And I have seen many protracted battles that could have been avoided but for the lack of sensitivity of one or both attorneys. All the carnage cannot be explained away by blaming the clients. Some of the blame must rest on the system itself.

I decided to write this book because I think that many more couples can divorce decently if they understand how to maintain control over their divorce. I also believe that people do not learn this from their lawyers. Although the organized bar includes many fine and decent people, many lawyers have little understanding of the psychological and philosophical prerequisites of decent divorce.

In summary, your chances of getting what you really need are not very good if you simply rely on your lawyers. The purpose of this book is to empower you to make your divorce suit your purpose and to help you spare yourselves and your children unnecessary grief. Although I believe that mediation is a superior way to negotiate a settlement, it does not work for everyone. Whether you negotiate with a mediator or through your lawyers, the principles remain the same:

  • You can make choices that help rather than hurt you.
  • You can keep control of the process, if you are determined.
  • You can accomplish your goals instead of defeating yourself.

In this book, I will tell you how to do that.

Copyright © 1992, 2001 by Sam Margulies

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  • Anonymous

    Posted July 10, 2002

    A Spiritually Compatible Approach to Divorce

    As a spiritual counselor, I help people with trouble marriages. Obviously, I try to help them repair their marriages when possible. But sometimes, they have unresolvable issues. Divorce will lead to greater peace than marriage. Then I recommend this book. It's helped couples walk a peaceful path through a difficult time

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  • Anonymous

    Posted July 9, 2002

    I am amicably divorced because of this book

    Sam Margulies' book presents a peaceful vision, coupled with down-to-earth practicality. He offers sound, helpful advice about divorce His book helped me and my ex-husband to iron out difficult issues concerning our children and our finances. My ex and I are on good terms. We are allies in raising our children. We are fortunate to have avoided nastiness and big expenses and it's all thanks to this book.

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    Posted June 5, 2009

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    Posted April 12, 2009

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