Alternatives to divorce

By Shelly Gigante
Shelly Gigante specializes in personal finance issues. Her work has appeared in a variety of publications and news websites.
Posted on Aug 22, 2018

If your marriage didn’t work and you want a way out without bleeding your bank account dry, or dragging your kids through the proverbial muck, you may want to consider some divorce alternatives that can potentially help soften the blow.

By seeking legal separation, an annulment or divorce mediation, for example, you may be able to facilitate a more amicable and financially friendly split from your spouse.

“Divorce is not the only option,” said Mikki Meyer, a marriage and family therapist in New York City. “When you look at whether you want to go through a separation, look at how it is going to effect the both of you and how it may affect your family. Legal battles in divorce court can go on for years.”

Divorce and separation are common and often costly.

In an analysis of first marriages, the National Center for Health Statistics reports that 48 percent of women who are 44 years-old or younger experienced some form of “marriage disruption” before they celebrated their 20th wedding anniversary – and nearly all (86 percent) of those marriages in which the couples were separated for at least five years ultimately ended in divorce.1

Legal fees, court costs and other expenses related to divorce, including real estate appraisers and child custody evaluators, cost an average of $15,500 , according to a consumer survey by legal self-help publisher Nolo.com.2

Depending on whether the divorce is contested, the complexity of the couples’ finances, the state in which they reside, and the attorneys they retain, however, that figure can easily be twice that amount, said Meyer. (Related: The Role of Insurance in Divorce )

To spare their budget, and soften the emotional blow for their family, many couples today on the brink of divorce are seeking alternative options.

“I first try to get clients to work on whether they really want to separate and help them build a stronger, healthier relationship, but if they decide they do want to separate we look at what they hope to accomplish to see what solution might work best for them,” said Meyer.

Separation

One option for unhappy couples who wish to sever ties is to, well, not get divorced.

Couples who are deciding whether they wish to permanently end their marriage often start with a physical separation, in which one partner simply moves out. While state laws vary, a physical separation generally does not impact the family finances. Property and financial accounts are still typically considered to be jointly owned.

“Sometimes just a trial separation helps you see if you can live apart,” said Meyer. “What would that feel like and can you financially support the cost of two homes? Do they need to stay together for practical reasons?”

Couples who wish to make their split more binding can potentially obtain a court order to legally separate. Typically, such contracts spell out the terms of the agreement, including alimony, property, debt, and child-related issues.

Under a legal separation, the couple lives apart, but their marriage remains intact in the eyes of the law. Thus, you would typically not be permitted to remarry while you are legally separated, since you are not officially divorced. (By contrast, a divorce dissolves the legal marriage and both parties may remarry at any time.)

Not all states, however, allow for legal separation. Those that do may require couples to separate before filing for divorce, while others require married couples to begin divorce proceedings if separated. Legal assistance resource HG.org provides an online list of individual state legal separation laws.3

John Slowiaczek, president of the American Academy of Matrimonial Lawyers, notes legal separations work best for couples that are able to engage in healthy dialogue.

While some separating spouses fear that leaving the family home before a divorce is finalized may abandon their legal rights to the family home, or any assets they accrued while married, Slowiaczek said most judges are “very reasonable.” Typically, the partner who moves out would not be negatively impacted when assets get divided. If the relationship had become toxic, or even dangerous, the court might even look favorably upon the spouse who had the good sense to leave that environment, he said.

If kids are involved, Slowiaczek said couples who part ways should draft an initial custody agreement that clarifies how care for their children will be divided until a more formal custody agreement is hammered out in divorce proceedings. Be aware, he said, that the spouse who moves out might compromise their credibility in court if they later try to argue that their ex is an ‘unfit parent,’ since they left the kids in their care.

Slowiaczek cautions, too, that while separation agreements are often favored by former couples who wish to stay on the same health insurance plan, either because it makes the most financial sense or because one partner might not be insurable otherwise, that strategy can sometimes backfire.

“One of the biggest problems we’re encountering today is that health insurance companies have realized this is happening and they’re changing their policies to indicate that a legal separation voids coverage,” he said.

If health insurance is a factor for your legal separation, be sure to check your policy so you’re clear on the coverage terms.

Conscious Uncoupling

For those focused on keeping the peace, and dissolving their union with minimal scars, a “conscious uncoupling” is yet another option to consider.

The term was coined by marriage and family therapist Katherine Woodward Thomas and famously utilized by actress Gwyneth Paltrow in her 2014 separation from Coldplay front man Chris Martin. Conscious uncoupling describes a blueprint for better breakups.

The process, which is not legally binding, involves working through a separation in the spirit of cooperation and mutual respect. Ultimately, it aims to minimize emotional fallout for the partners and their children, and set all involved on the path to future success.

“It’s more like therapy,” said Emily Lawi, a spokesperson for Thomas’ book “Conscious Uncoupling: 5 Steps to Living Happily Even After.” “The point of conscious uncoupling is to help the couple work through something very difficult in a way that’s very positive, so they do not destroy each other in the process.”

Conscious uncoupling can be used as a framework to support each other through a physical separation, a more formalized legal separation, or as a framework for dialogue in a pending divorce.

Mediation

Couples ready to call it quits, but anxious to keep their legal fees under control can also opt for divorce mediation, in which a neutral party helps both spouses reach an agreement regarding the terms of their separation, including the division of property, and time sharing and financial support for any children, said Meyer.

Typically, an attorney is brought in for final review of the divorce agreement to ensure it benefits both parties equally.

Once signed by both parties, a divorce mediation agreement becomes legally binding.

Meyers said it can take just a few months to mediate a divorce, versus the years some couples spend duking it out in divorce court. Mediation, which does not include the attorney’s fees, she said, can cost $1,500 or less. (Related: Do You Need Financial Therapy for Your Marriage? )

If you opt for mediation, however, Slowiaczek said you must be willing to perform your own due diligence.

“Mediation serves a valuable purpose, but you should never go to mediation until you know all the facts of your case,” he said. “You want to be sure you know what the other side is talking about, what the assets, liabilities and account values are. You need to know as much about the family’s financial affairs as your spouse or it could cost you a lot of money. Your ex may be able to hide certain assets, or negotiate a deal that would otherwise be unfair if you were in a court room.”

Annulment

An annulment is another way to potentially dissolve your union, but it’s very different from divorce.

How so? When an annulment is granted, the marriage is treated as if it never happened. In a divorce, the marriage is legally over, but is recognized as having once existed.

There are two distinct types of annulments and they serve different purposes, said Slowiaczek.

A civil annulment, which must be granted by the courts, terminates a marriage and, like a divorce, positions the parties to legally remarry. Depending on your jurisdiction, you generally would not be able to make a claim for spousal support since the marriage thereafter is treated as it if never existed, said Slowiaczek.

He notes, too, that civil annulments are “very difficult” to obtain, and often only granted in extreme cases, such as when an individual failed to disclose a prior felony, or concealed a cognitive impairment.

Because the party seeking an annulment must generally prove intent to fraud, civil annulment proceedings can become “ugly and messy,” said Slowiaczek.

Legal representation is advised.

The other type of annulment is a religious, or ecclesiastical, annulment, which dissolves the marriage in the “eyes of God.” The purpose of a religious annulment is to enable one or both of the partners to be remarried within their faith.

Those who obtain an ecclesiastical annulment, however, are not legally divorced, and must separately obtain a divorce decree to dissolve their marriage if they wish to legally remarry, said Slowiaczek.

Divorce takes an emotional and financial toll under any circumstance, but it’s not the only choice for couples who seek to start anew.

Separation, conscious uncoupling, mediation and annulments can potentially minimize the fallout for the entire family and provide a springboard for a healthier transition into the next life stage.

More from MassMutual…

Busted Marriages and College Financial Aid

Financial Tips for Women in a Divorce

Same Sex Couples Who Seek to Split Face Unique Financial Challenges

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This article was first published in March, 2017. It has been updated.

 

National Survey of Family Growth, “Key Statistics from the National Survey of Family Growth – D Listing” 20015.

Nolo, “How Much Will My Divorce Cost and How Long Will it Take?” 2014.

HG.org, “Legal Separation Laws By State” 2017.

The information provided is not written or intended as specific tax or legal advice. MassMutual and its subsidiaries, employees, and representatives are not authorized to give tax or legal advice. You are encouraged to seek advice from your own tax or legal counsel. Opinions expressed by those interviewed are their own, and do not necessarily represent the views of MassMutual.