What Happens AFTER The Divorce? Tips On Preventing Post-Decree Litigation
You went to court; the Judge took your testimony; and a Judgment of Dissolution of Marriage was entered. You think the horrific experience of going through a divorce is finally over, but you and your ex-spouse continue to have difficulty working together on issues that you thought were resolved. You are constantly arguing over issues related to money and the children. How is this different than when you were together?!
Post-decree issues are common in cases that were litigated. They are far less common in collaboratively resolved cases, but that is a topic for later discussion. The last thing you want to do is to be back in court re-litigating issues that you thought were resolved. So, how do you avoid going back to court?
There are many ways to minimize the chances of post-decree litigation. These alternative dispute resolution methods range from the very informal conversations, such as you and your spouse discussing and resolving an issue between yourselves (a “kitchen table” settlement) to formal discussions, such as lawyer assisted mediation and/or collaboration.
In post-decree situations I encourage my clients to attempt resolution of these matters between themselves, but this often proves unsuccessful because of poor communication techniques. Before even beginning to discuss post-divorce problems, you must define clearly your issue(s) and your goal(s). They should then be conveyed to your ex-spouse with a tone of respect and willingness to work together moving forward. This initial step is crucial in opening a dialogue towards resolution.
I often assist clients in reviewing and revising an initial email to ensure the process begins in a positive manner. Often when the communication begins in the appropriate way the parties find that they have common goals and this facilitates resolution.
Next, you must listen objectively to the issues, concerns, and fears of your ex-spouse. It is crucial to avoid polarizing language in your communications; language that “demands”, “attacks” or “blames” would not be helpful to reaching an agreement.
Even with good communication, sometimes parties are not able to resolve their issues. When this happens we may suggest incorporating a mediator who is trained in resolving the pending issues. For example if issues involved parenting of the children, we might use a parenting coordinator who is trained in mediation to facilitate a resolution. If it is a financial issue we would suggest an accountant trained in mediation to work with the parties.
Ultimately, it may be necessary to involve attorneys in cases of post-decree litigation issues, but you still may avoid court proceedings through lawyer assisted mediation or collaboration. The collaborative process is available in post-decree matters even if you litigated your case initially. This process involves not only attorneys trained in collaboration, but mental health coaches and neutral experts who take a team approach to resolving the disputed issues. It is a client directed process in which you and your ex-spouse are empowered with the tools to resolve your dispute and learn communication and settlement methods that will help you avoid disputes the future.
In closing, no one enjoys litigation, both in divorce or post-divorce. It is not only emotionally draining, but can be costly. Additionally, a judge’s decisions is not always optimal. It’s not wise to have a third party stranger telling you how to raise your children or spend your resources. That’s why it is wise to try to avoid post-decree litigation. Though not easy, working together with your former spouse, either alone or with trained professionals will almost always get you a better, healthier outcome.
Zachary M. Kafloglis is a Partner at Katz & Stefani.