This article simplistically identifies the main issues in the termination of the marital contract and explains the difference between a divorce and dissolution. The issues in the termination of the marital contract are as follows: (1.) Allocation of Parental Rights and Responsibilities if there are children. The main issues regarding the allocation of parental rights and responsibilities would include who pays child support and how much, companionship time (formerly “visitation”), who has custody or how is shared parenting (formerly “joint custody”) to be allocated, who is responsible for health care/ insurance and how will the tax exemption be divided. (2.) Spousal support. Will one party pay the other spousal support and how much and for how long. (3.) Property distribution. How will the marital real and personal property and all other marital assets be divided. (4.) Pension and retirement division if in existence. And, finally, (5.) Allocation of marital debt. These are the main issues in every divorce/dissolution.
The most fundamental difference between divorce and dissolution is that a divorce is a lawsuit and a dissolution is an agreement. Dissolutions are very cost effective and can be finalized in as little as six weeks. The cost of the dissolution will vary on the number of issues in the case. However, the financial and emotional cost will be dramatically less than a divorce. An action for divorce- if the parties cannot come to a voluntary agreement- can easily take a year or longer to finalize. The information gathering process referred to as “discovery” can become a costly nightmare. The emotional price of continuous daily resentment, depression, fear and worry can become overbearing and destructive to one’s health. Obviously, I am a big fan of dissolution. That being said: It is very difficult to get two people who are usually not the best of friends to agree to all issues. All issues must be agreed to for a successful dissolution to occur. This requires compromise. The cardinal rule is that nobody walks away happy. Each party usually feels wronged in some way by the other. Each party usually feels that they could have obtained a better result if they would have just held out longer or been more aggressive. A belief that is usually wrong.
If the parties are unable to come to an agreement regarding all the issues, as is often the case, a divorce must be initiated. I try to resolve as many issues as possible before hand and communicate with the other party or his/her attorney to coordinate the process. It is always best to work together and focus upon resolution of the issues on which the parties agree. The purpose of the attorney is to make the process as minimally painful and least expensive as possible. Open and honest communication is key. Unfortunately, in many cases, the parties have so much resentment toward each other that they are simply unable to cooperate. This is never in anybody’s best interest and can be very damaging to children.
There are certainly ways to minimize the pain and cost of a divorce but it will never be as efficient and emotionally healthy as two parties coming to a voluntary agreement. I believe that a dissolution really should be possible in most cases if two factors are present (1.) the parties are mature, sensitive and intelligent and (2.) the matter is approached with a cost v. benefit business analysis, an open mind and sound professional guidance. I know this is easier said than done. But- if accomplished- the financial and emotional rewards (including healing time) reaped are enormous for the parties and children and will be enjoyed for the span of one’s entire life.
Robert C. Biales