Civil Divorce/Civil Get

Pre-Divorce Considerations


Only a minority of divorcing couples choose to attempt marital therapy before they get divorced.  The suggestions that appear in the literature about selecting a professional, include the following:

Ensure that the therapist has specific training in Marital Therapy.

Ask the therapist concerning their thoughts about marriage and divorce.  Do they encourage, or discourage, divorce at the first signs of difficulty?

Are both parties comfortable with the therapist?

Research the choice of a therapist carefully.  Do not hesitate to ask to speak on the phone before the decision is made to retain the therapist.

Set reasonable goals and a reasonable timeline for evaluating progress.

The decision to seek marital therapy can be a good one if the proper preparation is made.  If the therapy is unsuccessful, the couple will know they gave their marriage one last chance to survive.  Relationships such as marriage do merit such an effort.


The term mediation refers to a process by which the parties go to a "third party" and attempt to reach an agreement through discussion and an exchange of ideas.  Mediation costs are a fraction of the costs of litigation.  Arbitration, whether through a panel, Beth Din tribunal, or an expert, refers to submitting all issues before a third-party for a binding decision.  Both mediation and arbitration avoid the cost and trauma of needless Court wrangling.

An excerpt from a mediator's blog that describes mediation's benefits, even when the parties fail to reach a complete agreement, follows:

Clients who are interested in Divorce Mediation will ask if mediation makes sense even if there will be issues that are not able to be resolved via mediation. Does it make sense to mediate if e.g. only 8 of 10 issues will be resolved via mediation? I believe the answer to this question is in the affirmative. Divorce Mediation serves many purposes and in discussing this question with a client, the true benefit of mediation will become apparent.

Litigation is costly and traumatic. People choose to mediate in order to reduce anxiety and legal costs. They also may prefer the Win-Win approach that mediation represents. Even if there is agreement only on some of the issues in dispute, mediation will have served the purpose of lessening dispute, lowering eventual attorney fees, and making it clear to both parties that the matters in dispute are neither unduly numerous nor legally overwhelming. The fact that many issues were indeed resolved via mediation will make agreement on the remaining issues that much more likely. Studies support such a conclusion.

Incomplete agreements show the parties that consensus on some issues was indeed attainable. This gives the parties the confidence to continue their communication into the future. Nothing succeeds like success. It is indisputable that agreement was attained because of the “good will” of the parties. The residual “good will” hopefully will continue until the final agreement will eventually be reached. Even in the cases where the disputed issues will need to be submitted to the Court, the level of rancor and confrontation will have been dramatically reduced.

Finally, mediation teaches the parties that they possess the ability to communicate positively and civilly. This communication skill will be needed even after the divorce if they are co-parents or if unanticipated issues eventually arise. Giving this gift of positive dialogue to a divorcing couple is perhaps one of the greatest gifts any mediator can bestow.


(Although this website deals primarily with divorce, this blog piece, written by a mediator in the group, explains why some issues need to transcend even divorce.  Of course, for readers who are considering marriage, the discussion on pre-nuptial agreements is quite pertinent.)

Many attorneys feel that a document such a pre-nuptial that discusses the prospect of divorce even before the nuptials have occurred is a real “downer”. Such a document can take the excitement out of the pre-wedding period. I believe that Pre-Nuptials do serve a purpose but they cannot appear to be unduly focused on money and asset division. I urge clients to consider how to make the agreement one that also shows the love and commitment that the couple is planning to make to one another. Five suggestions for making the Pre-Nuptial more “warm and fuzzy” are described below:

1. Reciprocal Support Clauses
Many attorneys advise their client to insert clauses about support in the event of divorce. I suggest that all such clauses are to be made reciprocal. If the wife expects support if she is divorced while ill, unemployed, etc., it is only fair that the alternative clause be drafted in the event of Husband’s illness, unemployment, etc. Such an action shows the true concern each party should have for the other, even if divorce will occur.

2. Relationship with Unborn Children
The Pre-Nuptial agreement looks at the “big picture” of future eventualities. I encourage parties to state that they will do everything possible to ensure tht their spouse will have opportunities to develop a positive reltionship with the yet unborn children. While such statements have little legal viability, they state clearly that children will not be used as pawns in the eventuality of divorce.

3. Communication and Mutual Concern
All Pre-Nuptials have a very business-like tone attached to themselves. To mitigate this impact, I ask that a clause be inserted that notwithstanding this agreement, the couple is commited to their relationship and will work on developing positive communication and mutual concern.

4. Mediation Agreement
It is essential to put in the Pre-Nuptial agreement that the couple will go to mediation, rather than litigation, if any issues covered in the agreement are eventually contested.

5. Seek Help for Marital Difficulties
Divorce is not uncommon but neither is it inevitable. I try to emphasize this by asking the client to insert a paragraph stating that the couple will go to seek professional help in the event of marital difficulties. Divorce lawyers should not be the first resort when marital stresses appear.

Pre-Nuptial Agreements can give your client a chance to focus on why their marital relationship is so important. Some of the above suggestions go a long way to humanizing this pre-marital document.


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