There are many “shadows” that can exert influence on a divorce and the discussions that take place to try to reach an agreeable settlement. Perhaps the most obvious of these is the law.
If a couple would like support in working out their divorce agreements, they can use a mediator. A divorce mediator however will not impose a resolution. Therefore, there needs to be a forum of last resort as a backdrop to the divorce mediation process. This is the legal system. If a couple is unable to reach agreement on all issues, and they still want to get divorced, a judge can make decisions as necessary. So in this sense and as a practical matter, divorcing spouses have their discussions and negotiate in the shadow of the law.
It’s wise to learn about at least the basics of divorce law as one of the factors to take into account in your decision-making. You can read about divorce law. An experienced divorce mediator can help you understand basically what the law says. You can consult with an attorney to get their understanding of the law and how it could relate to you.
However, no one knows exactly how the law would be applied by a judge to your particular situation. You can’t know this for sure until it plays out in court. You can argue your case in front of a judge or you can have an attorney represent you. Counter arguments are presented and then the judge decides how to apply the law to your case. Many different factors influence judges’ decisions.
Sometimes a spouse is convinced the law is in their favor. This may arise partly from their wishful perception of the law. Or it may be based on what they were told by a friend or an attorney hopeful of representing them. A spouse who is rightly or wrongly convinced the law is in their favor may be less inflexible in negotiations as a result.
So the shadow of the law is not black and white. To some extent, it’s a matter of perception and perspective.
There are other shadows that can influence decision-making in a divorce. These can also can create challenges in negotiations and mediation. Sometimes they are more potent than the legal context. Some of these are:
- Affairs and the resulting emotional fall-out;
- Time concerns, especially if one spouse wants to move more quickly than the other;
- Expense concerns which may limit the expertise brought to bear in the divorce;
- Impacts on affected others such as the children;
- Concerns about impact on the relationship if it is not ending;
- Uncertain compliance if a lack of trust has developed;
- Foregone or reduced opportunities as a result of the divorce;
- Concerns about being able to adapt to necessary changes and enjoy life.