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SEPARATION AND DIVORCE-WHEN IT HAPPENS ANYWAY: How Pastors can best respond to marital crisis in their congregation

Simms_2,5.20

By Dominique Callins, Esq.

Divorce. A word hardly uttered in holy gathering, except in swift and definite condemnation- or at least strong disapproval. It is the occurrence dreaded, the status shamed, the event experienced by those lost, unrepentant souls. And yet it is a statistic certainty that at least 40% of the married American population will experience it in his or her lifetime. Of those who manage to avoid it, it is sometimes a willful decision not to break the chains of an unhappy or ineffective marriage.

Unfortunately, the church is not immune. The church is made up of people, and people come from the world. And the world includes divorce.

Divorce is not a Christian process.  Jesus told the Pharisees that it was because of man’s “hard hearts”, and not because it is a good thing, that the Old Testament law permitted divorce (Matthew 19:8). Nevertheless, many people- including those in the church- will unfortunately experience separation and divorce. How can pastors and the church handle the marital crisis well? Here are 5 facts that are important to know about separation and divorce to help others going through this process.

  1. Separation and Divorce Does Not Require Consent

Marital separation and divorce are the result of a breakdown in the relationship.  In some situations, one spouse is caught off guard when his partner acts unilaterally to cause the breakdown, such as in the instance of adultery or domestic violence. Legally, this is referred to as a fault-based separation or divorce. There is a specific basis- or, “fault”- supported in the law as a basis for marital separation and divorce.

More often, however, marital breakdown is not the result of a single, catastrophic event.  Instead, it is a series of little incidents or irritations that build up. Then one or both parties may decide they can’t- or don’t want to- be married anymore.

Whether a party is “at fault” or not, in most states separation and divorce can be initiated by one of the parties. The other party does not need to agree or consent. Almost every state has a “no-fault” ground for separation and divorce. In Virginia, for example, a party can file for divorce after 1 year of separation from his or her spouse. This can happen even where the parties may be physically separated but attending marriage counseling. This can happen regardless of whether the non-filing spouse wants or consents to separation and/or divorce.

  1. Even When Divorce is Not Desired, People Should Be Educated On Their Rights

Because divorce can be initiated by one party without the consent of the other, it is important that a non-filing spouse still be encouraged to seek wise counsel and advice regarding the divorce process and his or her rights in it. “Therefore get wisdom. And in all your getting, get understanding.” Proverbs 4:7 (NKJV). In addition to prayer for marriage reconciliation, the congregant should be recommended to a capable family law attorney- where possible, one who follows Christ and adheres to biblical principles. Such an attorney can be more sensitive to an individual’s faith beliefs and objectives while simultaneously working to protect the client’s legal interests.

The congregant should also meet with financial advisors and tax professionals, to get the “lay of the land” regarding family finances. This is particularly true where the non-filing spouse has not been actively involved in the financial planning. The reality is, a filing spouse typically either has a grasp of the current family finances or has already investigated the issue prior to filing. Trusting God through reconciliation and marital restoration does not mean turning a blind eye to the present reality.

Finally, it is important for an individual to be connected to a good, Godly therapist—someone other than the marriage counselor. Seeing a separate, individual therapist allows the party boundaries and independent space. Self-care- an important consideration during this stressful process- can be more fully pursued in individual therapy. Also, it allows the marriage counselor freedom from conflicts of interest or accusations of bias, which can derail reconciliation efforts.

  1. Temporary Provisions Can Be Ordered While Divorce is Pending

People often assume service of divorce papers signifies marriage dissolution as inevitable and imminent. However, this premise is inaccurate. Contested divorces (i.e., divorces where the parties have not reached an agreement on issues of child custody, support and property division) may remain pending in a trial court for 1 year or more. During this time, a lower income-earning or stay-at-home spouse may have real concerns regarding her spouse’s obligation to provide financial support to pay necessary bills.

The law does provide for a spouse’s ability to seek and obtain temporary relief or provision during the pendency of a divorce proceeding. A court has the authority to compel temporary child and spousal support, provision for health insurance coverage, payment of household expenses (including mortgage and other debt payments), child custody schedules, and to exclude a party from the marital home and make other decisions to maintain the status quo during the pendency of a divorce proceeding.

The court also has the authority to issue protective orders and other such orders as may be necessary to protect a party- or children- from threats or actual physical violence. People have a right to feel and to be safe, and to expect safety for their children. Even where prayers for reconciliation may be appropriate, an individual should never be encouraged to expose himself/herself to violence or threat of bodily harm for the sake of marriage restoration.

  1. There Are Alternatives to Litigation

Service of divorce papers does not mean the only option for marital dissolution (or reconciliation) is a trial. There are alternative dispute resolution options which allow parties to negotiate issues of custody, support and division of assets and debt between themselves, instead of having a judge decide.

Mediation is by far the most popular alternative dispute option. The process involves the parties (and their attorneys, if they have them) engaging with a third-party neutral to facilitate a settlement agreement. The goal of a mediator is to help parties reach an agreement on their own terms. It is a voluntary process; a party cannot be forced to participate in mediation.

Arbitration- a lesser-known alternative dispute option- is a helpful hybrid of mediation and trial. The third-party neutral acts as a judge to make final decisions on one or several discrete issues that the parties decide, or on the entire case.  The parties select the arbiter, just as they would a mediator. Like a trial, each party can present witnesses and evidence, and make arguments. At the end of the session, the arbiter makes a decision the parties agree in advance is final and binding.

Collaborative divorce process is a relatively new phenomenon dispute resolution mechanism. It requires the greatest level of cooperation and commitment between the parties. That’s because they and their attorneys pull together a team of professionals whom they believe can provide necessary expertise to address the contested issues of the case to reach resolution: accountants, child therapists, financial advisors, realtors, etc. Genuine collaborative divorce process requires the parties and their team of professionals—including attorneys— agree that if the process is unsuccessful, the parties will start the divorce process over with new professionals- including new attorneys.

  1. Don’t Force What God May Be Releasing

Jesus admonished the Pharisees, “Therefore, what God has joined together, let man not separate.” Matthew 19:6 (NKJV). No one knows better than pastors and family law attorneys: people get married for all kinds of reasons. While God in His sovereignty allows us free will, every choice we make is not necessarily one God sanctions.

This is no less true in the context of marriage. Sometimes people, in our finite judgment, make poor choices regarding spouses and marriage. The best scenarios result in people being able to safely, albeit regrettably, go their separate ways. The more extreme scenarios result in death or serious injury where an individual is counseled to stay with a violent or dangerous spouse because “God hates divorce.” Well-intentioned but misguided advice keeps some people in toxic- even lethal- marital relationships.

Whether a circumstance of violence, betrayal, or perhaps God allowing an individual to be released for spiritual growth from the bonds of marriage to a resolute unbeliever, God moves and works, even through marital dissolution. Every marriage is not one sanctioned by God. The good news? There is grace, hope, and forgiveness in releasing what God did not intend as His sovereign will.

Conclusion

Even as family law attorneys who follow Christ, we cannot necessarily turn the marital separation and divorce process into a “Christian” process- it’s not.  We know divorce is not God’s best for the people called by His name. But we also know that sometimes it happens anyway. In those instances, what do we do? Our attorneys offer sound legal advice to those going through separation and divorce, in an approach consistent with Biblical principles.  This means praying for and with clients. It means exploring alternative options to separation and divorce. It means providing honest and practical legal counsel. It means encouraging non-litigious approaches to dispute resolution, including mediation and collaborative methods. It means seeking the client’s best interests instead of the bottom-line. Above all, it means serving clients as unto the Lord- with compassion and without judgment.

Do you know someone in Northern Virginia facing the possibility of marital separation and divorce? Does this person need to prepare for the possibility of marital separation while praying for marriage restoration? Invite them to join us for READY TO STAY, PREPARED TO GO, a seminar addressing the practical and legal aspects of separation and divorce, presented in an intimate setting. Space is limited for 2-hour presentations on February 19, March 11 and April 22. For more information, contact dac@simmsshowerslaw.com or mim@simmsshowerslaw.com.

Dominique Callins is the Family Law Section Leader at Simms Showers LLP, and the founder of NextBetterChapter.com, an online resource for individuals navigating family transitions. As a seasoned litigator and a trained family law mediator, Ms. Callins has assisted Northern Virginia clients in crafting creative and effective solutions to the challenge of family transition. She is the author of “Focusing on the Things That Matter,” published in Stress-Free Divorce, Vol. 2, and been featured on radio and other media outlets. 

Ms. Callins is an active member of Gateway Community Church in South Riding, Virginia, a member of the George Mason University School of Business, Women in Business Initiative (WIBI) Board, and a supporter of The Leadership Center- a leadership school dedicated to developing future women leaders of Honduras. She can be reached by email at dacallins@simmsshowerslaw.com, or by telephone at (703) 771-4671.

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Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Dominique Callins at dac@simmsshowerslaw.com or Robert Showers at hrs@simmsshowerslaw.com for legal advice that will meet your specific needs.

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