Divorce… To lawyer up or not to lawyer up
Here are some helpful tips to smooth the road ahead
Getting a divorce is a traumatic, chaotic and for most people a frightening time. Family and friends all usually have advice to give as to what lawyer you should use, how your visitation schedule should look like etc. Although advice from family and friends is usually given from the heart, it is most likely based on their own experience or that of a friends.
Here’s the thing about divorce and the road ahead, you can choose what path to take and also how much money you will spend on it. The hard truth is that if your divorce is not done in an amicable manner and conflict is taking over, it will cost you an arm and a leg. Lawyer fees are expensive and the longer the conflict drags on the more the process will cost you.
Things you need to know when getting a divorce:
Litigation is not the only option….
The word litigation implies that the divorce process is managed by lawyers and they will manage the disputes including where the children should live, what the visitation schedule will look like, maintenance, spousal maintenance etc. This can however be a time consuming and costly process. Most people choose to go this route as it is the only option known to them.
There is the option of mediation and a parenting plan
The Children’s Act 38 of 2005, section 33 (2) states that whenever a child is involved in a divorce and parents are in disagreement with regards to aspects concerning the child, it is compulsory for parents to first attempt to mediate the issues before going to court. What does it mean to mediate the issues?
Mediation is a voluntary process which means that it cannot take place unless both parties (or parents) are willing to attend sessions and to provide their cooperation. The process takes place out of court which means it is not litigation- it is not a fight that someone can win. Mediation involves the two parents and a mediator talking about the disputes between the parents with the aim of coming to a reasonable agreement with which both parties are satisfied. After a conclusion has been reached the mediator draws up a parenting plan which stipulates what exactly the parents have agreed on. The parenting plan is then signed by both parents as well as by the mediator. This document can then be sent to court; which makes it a court order, or it can remain a gentleman’s agreement between the parties involved.
Mediation has several advantages:
- It is a lot cheaper than litigation as it occurs outside of court.
- Mediation is done by a person whose goal is to help parents reach an agreement, whilst litigation is usually fueled by conflict and demeaning statements and threats; such as “I will make sure you will never see the children again” etc. These threats contribute to the emotional turmoil the persons involved are already experiencing.
- Mediation’s goal is to minimize the conflict and to shorten the divorce process.
- Mediators usually aim to act in the child’s best interest (a prolonged litigation process fueled by conflict and anger is not in the child’s best interest)
- The mediator is a neutral, objective person who has nothing to gain from the process other than to help people resolve their conflicts.
What does a parenting plan entail?
A parenting plan is the document which contains the issues relating to the child and the child rearing process which has been discussed in the mediation process. A parenting plan can be drafted between divorcees or the unmarried parents of a child. It usually has information on:
- The child’s basic information
- The primary residence of the child ( that is where the child is going to stay for most of the time)
- The contact schedule between the child and the parents as well as information on where to spend Christmas, birthdays and other special occasions
- The education of the child
- The religious affiliations and values that the parents have decided on
- Discipline of the child
- It can contain any arrangement the parents wish to include
- It can contain child maintenance arrangements
HOWEVER THE GOLDEN RULE IS THAT IT NEEDS TO BE IN THE CHILD’S BEST INTEREST
To ensure that it is in the child’s best interest the child usually participates in the process by means of an evaluation or interactional analysis
What if we can’t come to an agreement…
If mediation fails; and parents are unable to agree on child rearing issues, a care and contact investigation can be done. This is also a process that occurs outside of court and is conducted by a neutral and objective person. The aim of a care and contact investigation is to ensure that the child’s needs come first and to help parents gain insight as to what decision would be in the child’s best interest. This investigation can be done with regards to the care of a child or contact rights of a parent or any other person of interest. In most divorce-related-situations, parents are often so blinded by their own anger, hurt and needs, that they do not realize that their decisions can cause the child to experience a lot of pain and that it may have a negative long-lasting effect on the child’s development and well being.
A care and contact investigation:
- is done by a professional; such as a social worker or psychologist who has knowledge on the Children’s Act 38 of 2005 as well as knowledge on the divorce process
- is also done by the Family Advocates
- may include sessions with the child, parents and any other relevant person
- is a voluntary process; as both parents need to give their consent and need to cooperate
- offers both parties feedback regarding the outcome after the process is completed
- may result in the social worker; or person conducting the investigation making certain recommendations which can be used in court
Both the mediation process and the care and contact investigation aim to minimize conflict and to put the child’s needs first. By choosing one of these processes; parents are able to maintain a civilized relationship with each other and to minimize the negative effect that divorce may have on the children involved.
For any inquiries on mediation, parenting plans or care and contact investigations contact: