You and your spouse come to your divorce with very different histories of your marriage. (In fact, if someone could get the two of you to agree upon that history, they could save your marriage.) As it ends, there’s a natural tendency to look at your entire relationship and start tallying your spouse’s crimes against you. Trust me, you’re both doing the same thing.
A divorce mediator and a divorce lawyer are going to look very differently at this fact. An adversarial divorce lawyer may tend to dwell with you in the past, whereas a divorce mediator is going to look to the future.
There has been a very unfortunate tendency on the part of adversarial legal proceedings to view divorce as the occasion to right all of the wrongs, whether real or imagined, that have taken place in your marriage. And since a divorce lawyer’s role is to be your advocate, he or she will tend to see you as being the hero (the innocent party) and your husband or wife as being the villain (the guilty party). It might feel good to play the hero, but it will only give you unrealistic expectations followed by equivalent levels of disappointment. It may also keep you battling in court for years, at considerable cost to both parties.
The fact is, with few exceptions, “fault”–or bad behavior–does not translate into one person getting less of a particular asset. If someone had an affair or acted horribly it doesn’t mean he or she loses the house, or pays more support, etc. I’ve heard clients say, “My life shouldn’t change…this is not my decision. I never wanted this divorce in the first place!” These are relevant feelings, but here’s the reality: Sacrifices need to be made by both parties. It is more difficult to maintain two households rather than one, and both parties have to be able to meet their needs on some reasonable basis, and there is only so much to go around.
A divorce mediator does not believe that there is any future in the past. There is only your hurt and disappointment. And slinging around a lot of mud will just leave everyone very dirty. It will do nothing to solve your problem and bring you to an agreement, which is what a divorce mediator would like to help the two of you do.
You have every right to want your husband or wife to “pay” for what you believe he or she has done. But in your own best interest, your divorce proceeding is not the place.
Lenard Marlow, JD, is a founding partner of Divorce Mediation Professionals, one of the oldest and largest divorce mediation facilities in the United States. A past president of the New York State Council on Divorce Mediation, he has authored six books on the subject, including The Handbook of Divorce Mediation and The Two Roads to Divorce.
Maren Cardillo Elbaum, JD, has been practicing for nearly a decade, exclusively as an attorney-mediator at Divorce Mediation Professionals. She received training in divorce mediation at the Ackerman Institute for the Family in New York City. Maren dedicates her entire practice to helping couples find constructive resolutions for all of the issues pertaining to their separation and divorce and provides all related legal services.