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Divorce options – choose wisely by Nicki Macartney (Family attorney and mediator)

Getting divorced is probably one of the most difficult experiences a person could go through, on the grief scale the experience is right up there with the death of a loved one.

Having said that, you do have some control over the situation, control being the choice as to which way you are going to end your marriage.

There are a couple of different options and which starting block you choose will set the tone for the duration of race and possibly even after the race is over. It is therefore one of the most important decisions you will ever make, so choose wisely.

The common misconception that has been created by the film industry is that when you decide to get a divorce, you and your soon-to-be ex immediately become enemies and that someone has to emerge victorious in this war. “Take him to the cleaners” your friends may say or ” fight for custody”, the peer pressure to act accordingly can be intense . Zero thought is given to the fact that this person that you now wish to divorce and perhaps destroy in order to be victorious was once someone that you were very much in love with and cared about. It’s okay to be angry, don’t get me wrong but how will holding on to the anger or past serve you in the future though?

Now what if there is a better way to handle your divorce? Would you not want to give it some thought?

For the purpose of being complete I will go through all the different options with regards to getting a divorce below:

Let me start with Contested Divorces, the WAR of divorces :

A contested divorce simply means that you are in for the long haul. You and your soon-to-be-ex will each appoint an attorney to act on your behalf. Once a divorce is contested the adversarial system kicks in and you and your significant other will head for trial. Each side will fight as hard as they can to win their case. In this system, winning is everything which means that there can only be one winner and one loser. The Judge will listen to each sides’ legal representations and then he/she be tasked with the duty to decide who is telling the truth in order to make a just decision in favor of one party over the other.

This process can take many months and even years before the matter is brought to trial. Of necessity this would also mean that your legal costs are going to be adding up significantly and it is common knowledge that contested divorces are extremely expensive.

Many contested divorces however end up being settled prior to trial or even on the steps of the court, having therefore gone through the adversarial process and incurring large legal expenses which could have been avoided had the parties tried to settle beforehand.

Then we have Uncontested Divorces

Should you and your spouse agree on the terms of your divorce then this option is definitely for you. It is simple and cost effective and allows you and your spouse the chance to end your marriage quietly and with dignity.

You and your spouse will need to agree on the division of property, maintenance, spousal maintenance if applicable and terms around the contact and care of your children. You will both consult with one attorney, and therefore only have to pay one attorneys’ bill. Your attorney will draft a settlement agreement which the both of you will sign and this settlement agreement will then become a court order once the marriage is dissolved by the court.

Uncontested divorces are the most cost effective way to get divorced and move through the system a lot faster as well. In addition hereto it also reduces hostility and assists the family to find their new normality as soon as possible. There will be no trial and only the Plaintiff will need to appear in court.

Mediated Divorces

You and your spouse may not want to get involved in a long drawn out court battle but may also not agree on everything or agree on very little. Well there is an alternative to go going in guns blazing. Enter ….Divorce Mediation.

You and your spouse will meet with a neutral Family Mediator who will assist and guide you to come to an agreement that will be acceptable to both of you. The mediator will advise you on the different scenarios that could play out should you wish to proceed to trial and abandon mediation. The mediation process is also a cheaper and faster alternative to the adversarial system and involves the family as a whole.

The Mediator will draft an agreement which you may send to your attorney for review should you wish. If there are children born from the marriage, the mediator will also draft a comprehensive Parenting Plan for the family which deals with all aspects regarding the contact and care of the children as well as the responsibilities and rights of each parent. The Parenting Plan will be sent to the Family Advocate for their perusal and the Family Advocate will provide the court with their opinion as to whether or not the Parenting Plan is in the best interest of the children.

The Mediation process allows for both spouses to be actively involved in the decision making and they will therefore walk away from the process with a settlement that is specifically tailored to their unique needs. The key to successful mediation is that both parents need to put the needs of the children first and make arrangements that will be in the best interest of the children as per the Children’s Act.

Mediation is confidential and voluntary. It takes place a safe environment where both parties can express themselves, negotiate and come to an agreement that will be mutually beneficial.

 

For more info please visit our website www.divorce-mediation.co.za

 

By Nicki Macartney

Attorney and Family Mediator based in Randburg

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Comments

  1. Yvette Lambrechts

    My ex is trying to take the kids from me, who was granted primary care taker by the High Court, what do I do?

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