Divorce Toolbox: Choosing the Best Option When Relationships Unravel
Everyone knows that love and marriage go together just like a horse and carriage. But what if that horse and carriage want to go their separate ways and get a divorce? The legalities of doing so can be fraught with confusion and dread, particularly if there are children and a home involved.
Nowadays, couples aren’t mandated to a one-size-fits-all type of divorce where they might have to state their case in court.
But, admittedly, going to court is sometimes the only option for certain cases, according to Paula S. Silverstein, esquire, partner, with Ilkhanoff & Silverstein, PC, with offices located in East Petersburg, York, and Shrewsbury.
For instance, a contested divorce is one where the parties do not agree on the issues, and the matter must move forward so that the issues can be either settled or litigated through the court system.
“Some things must be decided by the judge because of the nature of the issues and the dispute,” she says. “The detriment is the cost as it is the most expensive resolution.”
Some of that expense is due to the large amount of time for an attorney to prepare and present the case in court, although the benefit, according to Silverstein, is for parties to have their day in court and talk to the judge. Another benefit is getting an answer.
“The problem is that not everyone likes the results, and then you may have to deal with the additional costs of someone taking an appeal of the decision,” she says. “We do what is necessary for each situation and try and determine the best course of action for our clients to reach resolution and their goals within reason.”
One can contest almost anything in the divorce, and custody is always modifiable until the child reaches the age of 18.
“Many people ask me, ‘When can the child decide whom to live with?’ and I always tell them when the child turns 18,” Silverstein says. “People have an idea that there is some ‘magic age’ that children can make the custody decisions. I have heard anything from age 8 to 14. Preference of the child is merely one factor in a custody case that the judge must consider. The more mature the child is and the reasons that they may have a preference only come into play at that time.”
Another course of action that might net more amiable and less expensive results is if a divorce is uncontested. This process is much faster and less costly, says Silverstein. She also adds that she uses mediation more now as a way to resolve cases, whether about divorce or custody. It is faster, less stressful, and less expensive.
“I find it very useful in many cases,” she adds. “It brings everyone to the table with a trained mediator conducting the case and keeping everyone focused on the issues. A trained mediator will conduct the session and the parties generally split the costs of the mediator and pay for their own counsel. The beauty of it is when you can reach resolution. Emotions are not as high and things happen much faster than going to court.”
Silverstein often attends mediation with her clients, although she doesn’t oppose them going alone to a session if cost is an issue. Everyone tends to be invested in the outcome during mediation as it is, in Silverstein’s words, a “give and take” situation. Parties must be open-minded and open to the process.
“You have to be willing to try new options and stay ahead technologically as well in the practice of law,” Silverstein says.
Another big issue that couples must deal with is the marital residence and who stays and who goes. This is something that is evaluated on a case-by-case basis, Silverstein says, as there are many factors that come into play.
“Many factors are considered, the main one being who can afford it, and also are children involved and where are the parties in the custody case as well?” she says. “We do not want the marital residence to lose value or be foreclosed upon, so finances are extremely important and support also must come into play on this issue, whether you are receiving or paying support and how much matters as well.”
If couples know their divorce options, they can sit down with their respective attorneys and pave the way for a smoother ride to resolution.
“It is important to have reasonable expectations and to set those expectations based upon experience in court and mediation and alternative dispute resolution,” Silverstein says. “We find that our clients want to know the options and make an informed decision and costs are, of course, an important factor as well.” BW