Recently, I published blogs entitled “Home Sweet Home”, parts 1 and 2, that discuss some of the problems with living together post divorce. While I am not an attorney and don’t do litigation, I have read enough evidence that leads me to believe that living together during a contentious litigated divorce can also result in damage to the children and thedivorcing spouses. After I posted those blogs, I heard about the Friedlander case, a horribly tragic incident in which the husband and wife were going though such a contentious litigated divorce and living together in the same house with the kids when suddenly the husband lost it, killing the wife and both children and then killing himself.
In an atmosphere of fighting and arguing, with or without kids being present, there is always a possibility for domestic violence. Empirical evidence shows that the point of separation is the most critical or dangerous time for spouses with a history of domestic violence to be living together. Even if there is no previous history of domestic violence, the separation/divorce event alone may be enough to trigger a violent response.
Most attorneys will advise divorcing couples to not to leave the marital home during the litigation process. There is a perception that the parent leaving the home may be disadvantaged in winning custody of the children and/or ownership of the home. In the Frielander case, the husband, an attorney and still living in the home, had just lost custody of his children by a court ruling. Which begs to question, could this tragedy have been averted had the couple separated physically during the litigation process.
In addition to custodial and ownership issues, staying in the marital home may keep up the pressure to settle. If one spouse moves out, often the other spouse is no longer as motivated to settle because the home environment is more peaceful.
What I said in the “Home, Sweet Home” blogs is that money is something that you can always earn, but your sanity is what you are jeopardizing by living together in a combative relationship while going through a litigated divorce process. And that process can sometimes take a very long time.
In mediation, the goal is to get through the divorce/separation settlement process quickly by cooperating and problem solving. This often can take as little as six weeks to complete. But for couples that are having a very difficult time and it takes longer than six weeks, we can provide a “Move Out Agreement” whereby one of my attorneys drafts an agreement determining who lives in the marital residence, how the bills will be paid and, if there are children, parenting and support issues. All of these terms are temporary while we are negotiating the settlement.
In light of the new no-fault divorce law in New York, you no longer have to accuse the other spouse of wrongdoing. As couples become more aware that mediation is a viable and more welcome alternative, fewer couples may choose to litigate their divorce. The courts are increasingly recognizing the benefits of mediation for divorcing couples. Many new matrimonial mediation programs are being offered throughout New York State by the various courts including the Supreme Court in Westchester County.