In order to best navigate the divorce process, it is essential to understand the different ways that the issues of divorce may be resolved.

Litigation - People most often think of litigation when they think of divorce.  Litigation may be necessary when spouses are unable to resolve the various issues involved with divorce.  Sadly, divorce litigation is generally emotionally and financially costly.  Fortunately, there are alternatives.

The Kitchen Table or Do-It-Yourself Approach – Spouses are always free to discuss and agree upon resolutions for some or all of their issues.  In some instances, spouses are unable to communicate meaningfully, but, when communication is possible, the method can be the least expensive and most effective.  This method can also help to define and narrow the issues between spouses. 

The Traditional Lawyer-to-Lawyer Approach – Spouses can negotiate through their lawyers.  This can be done prior to litigation.  This approach generally also coincides with litigation, meaning that the parties will continue to negotiate a settlement while litigation proceeds.  If a settlement can be reached on some or all issues, then litigation can be avoided in part or totally.

Mediation – Mediation is a process where the parties meet with mediator and try to resolve the issues between them.  The mediator is a neutral third-party whose sole job is to facilitate the reaching of an agreement.  The mediator cannot make decisions for the parties.  Mediation can be done with lawyers present or without lawyers.  Some people opt to participate in the mediation without the presence of their lawyer, but then have their lawyer review the agreement before signing it.  The important thing to remember is that a mediation is an opportunity to reach an agreement.  Neither party is committed to entering into an agreement.  Each party is free to terminate the mediation at any time.  Mediation can be done prior to initiating litigation or during the litigation process.

The Collaborative Approach – The collaborative approach is a process where a divorcing couple commits to working together to resolve their issues without litigation.  It is done with the assistance of lawyers and, when the couple chooses, with the assistance of family specialists and financial experts.  The couple also commits to full disclosure of information.  The collaborative approach can help a couple reach an enduring agreement which can be especially beneficial when children are involved.

No single approach is best for all situations.  Every family has its own unique circumstances.  Anyone considering separation or divorce should discuss these various options with a lawyer.

I recently read “Guyland: The Perilous World Where Boys Become Men” by Michael Kimmel and highly recommend it.

Kimmel discusses the modern world of boys and young men.  His basic premise is that there is a new developmental stage for males between ages 16 and 26.  Historically, men would assume the responsibilities of work, marriage, and family fairly quickly after boyhood.  In today’s world, more and more men are delaying those responsibilities.

Kimmel also examines the culture of males, especially young males, and how the consumption of media, hazing, and pornography impacts that culture.  He also explores how the culture of males impacts the girls and women that must interact with them.

While I found Guyland to be at times a bit too alarmist, it did make me reflect upon my own experience and question some of my own assumptions.  There is valuable information and insight throughout Guyland.  Anyone who interacts with boys and young men and seeks to better understand their world should read this book.

In November, I attended the Basic Collaborative Team Training.  I came away from the training excited about this relatively new approach to help clients resolve their differences.

Collaborative Law is an approach to conflict resolution which seeks to avoid the emotional and financial costs of litigation while giving each party the maximum information and input needed to reach an agreement.  In a nutshell, the collaborative process begins once the parties have signed a collaborative agreement.  That agreement usually dictates that both parties give full disclosure of relevant information.  Each party is represented by his or her own respective lawyer.  The parties can also choose to bring in neutral mental health and financial professionals for their benefit and the benefit of their children.  

If the collaborative process breaks down and the parties are unable to reach agreement, then none of the lawyers, mental health professionals, or financial professionals involved in collaboration can be involved in the resulting litigation.   The collaborative agreement clearly states this.  This restriction helps keep the parties committed to the process and helps to avoid the bad faith use of the collaborative process.

The collaborative process has some benefits over the traditional approaches to divorce, custody, visitation, and support disputes.  While the initial financial investment might be higher, the overall financial investment tends to decrease as the process plays out.  This is because the neutral professionals help avoid much of the duplicative, conflicting work that is done in litigation.  Additionally, the neutral assistance earlier in the process often can help parties identify and resolve issues early in the process which might complicate matters in litigation or traditional negotiation.  Like other methods of alternative dispute resolution, the collaborative approach allows the parties to craft their own solution which tends to result in better adherence to and satisfaction with the agreement.  The collaborative approach also allows for privacy which often will be to the benefit of the entire family involved in the dispute.

The collaborative process is not the best approach for every case.  However, it is an alternative which would benefit many families.  Every person facing a divorce, custody, visitation, or support dispute should discuss with an attorney whether the collaborative process makes sense for their circumstances.

Virginia Code Section 20-91(A)(9)(a) permits the granting of a divorce after the parties have lived "separate and apart without any cohabitation and without interruption for one year."  Only six months is required if the parties have entered into a separation agreement and do not have children in common.

In today's difficult economic times, many couples cannot afford the cost of two residences.  They wonder whether they can live "separate and apart" under the same roof.  The short answer is yes.

Virginia case law is clear that couples may live under the same roof and still live separate and apart.  See Bchara v. Bchara, 38 Va.App. 302 (2002).  The court will examine the particular circumstances in each case to determine whether the parties have in fact lived separate and apart.  There is not a finite list of circumstances which a court might consider, but generally courts will consider such factors as whether the parties have been sharing a bedroom, whether they have been having sexual relations, whether they have separate bank accounts, whether they are seen together in public, whether they hold themselves out as a married couple, whether they share household duties (shopping, cooking, cleaning, maintaining the home, etc.), and the like. 

There is no sure set of factors which will establish that you are living separate and apart from your spouse under the same roof.  The courts must evaluate each case based upon its particular facts.  

At Owen & Owens, we are always striving to provide high quality legal services at a reasonable price.  Unfortunately, litigation is often expensive and much of the expense cannot be completely controlled by your attorney.  Much of the expense is dictated by the other side.  However, you, as the client, can help significantly reduce your legal fees by providing your attorney with whatever documentation is relevant to your case in the most organized manner possible.  This is true in helping to build your case or defense, and is especially true when responding to discovery. 

Most people do not enjoy spending the time and energy it takes to respond to discovery.  Nevertheless, the Rules of the Supreme Court of Virginia require timely responses.  Failing to do so can negatively impact your case.  If your responses are incomplete and inaccurate, then it takes your attorney and his or her staff numerous hours to collect and organize that information.  Those hours will dramatically increase your legal fees.  If you are a client and have any questions about how to best provide your responses, please do not hesitate to contact us.