Divorce Options Defined
- Traditional Adversarial Litigation Process.
- Mediation and Arbitration.
- Collaborative Divorce.
- Advantages & Disadvantages of Each Process.
How a couple divorces depends largely on their goals. Some couples are committed to divorcing with dignity and respect and will seek options which honor those goals. Others are determined to obtain the maximum personal advantage without regard for the needs of the other spouse or the impact such an approach has on the family. Still others think that the court will vindicate wrongs done to them by the other spouse and seek punishment for that wrong-doer through the court process. Those who seek a mutually effective approach will seek different processes than those who feel they must be adversarial. The following explanations should help you determine which process best matches your goals.
Traditional Adversarial Litigation Process
Traditionally, one party serves the other with legal documents that ask for everything that a court could possibly award. The other party responds with a counter-suit, asking for the same awards from the court. The attorneys then begin the discovery process to find out about the couple’s assets as well as custody and support issues. The attorneys use formal court procedures such as written questions answered under oath (interrogatories), oral questions answered under oath in front of a court reporter (depositions), and subpoenas (use of the court’s power to obtain documents from third parties).
Both parties, through their attorneys, file their respective documents then wait for a series of court hearings to move the case forward over a period of months or even years. Attorneys contact their clients as necessary, and usually send them voluminous copies of all the documents they file and obtain.
During this process, the attorneys negotiate with each other in an attempt to reach a settlement. This type of negotiation is a process that is often lengthy, and can be bitter and filled with “win-lose” proposals. However gently done, the threat of going to trial if the process breaks down is always present. As the case moves closer to trial, the pressure to settle at these pre-trial conferences and hearings intensifies. Decisions are sometimes made under dreadful pressure. For all of these reasons and more, most divorcing couples do not want to end up in trial.
An actual trial before a judge is truly the last resort for couples who are so entrenched in their positions that compromise is impossible. Typically, only 2% of litigated divorce cases actually go to trial because the case is typically settled “on the courthouse steps.” Unfortunately, this usually occurs only after the parties and their children have incurred substantial financial and emotional costs. Almost no one wants their future, the future of their children, or their property rights determined by a stranger.
In a trial each spouse’s attorney argues their client’s position on the disputed issues. Witnesses, (including family members, friends, teachers, child care workers and others), may be called, and experts may be brought in by each side to give opinions about child custody arrangements or to value property.
It may be helpful to actually sit in on a court session conducted by your divorce judge. Then you can decide if you wish him/her to make critical decisions involving your future.
Mediation and Arbitration
Mediation is a method of settling disputes outside of court by using the services of a neutral third party, who acts as a communicating agent between the parties and assists the parties in negotiating a settlement. A mediator may be a lawyer, a mental health professional or other professional with mediation training. He or she does not make decisions about settlement terms but rather assists the participants in defining their own settlement.
A couple can utilize mediation at any point in their divorce process. Early Stage Mediation can begin before a case is filed and before attorneys are hired. The spouses will meet with the mediator, with or without their attorneys, and systematically work through all the issues that must be resolved in order to achieve closure. If a settlement agreement is reached through mediation, the mediator will put that agreement in writing. Other documents still need to be drafted by the attorneys and filed with the court in order to complete the divorce process.
Mediation may be used in Collaborative cases as well. SeeCollaborative Divorce, below.
Mediation may also be utilized, even ordered by the court, after a case is filed and while attorneys and parties prepare for trial.
There is also a form of mediation that may occur by agreement or by order of the court shortly before trial. Late Stage Mediation is usually an opportunity for both sides to present their case briefly to a neutral third party who then tries to give each side some insight into the strength of the case and works between the two sides to find a settlement.
A mediator has an equal and balanced responsibility to assist each party and will not favor the interests of one party over the other, nor favor a particular result. If traditional attorneys have already been retained for a court case, they often do not participate in the actual mediation session (Collaborative attorneys, however, usually participate in the session). A mediator cannot represent either party or draft the documents to finalize the case.
If the mediation process breaks down, parties can determine whether to preserve some, all, or none of the agreements that were reached, and ask the judge to decide disputed issues at trial.
Arbitration, in contrast, uses the services of a third party, thearbitrator, who acts as a private judge and who issues a legally binding decision. Arbitration is used in lieu of a trial to obtain a decision in private, often more quickly than would be obtained from the court. Arbitration can also be useful also where a disputed issue is highly specialized and there is an arbitrator who has this expertise. It can be a more economical alternative to an extended trial for parties who simply cannot agree.
Whatever issues the parties agree to submit to arbitration are thus decided by someone other than the parties. Once the arbitrator makes a final opinion and award, it is submitted to a judge to become the Judgment of Divorce. The judge must endorse and enter the award, unless the arbitrator breaks very limited rules.
Collaborative practice is a relatively new, multi-disciplinary approach designed to minimize conflict while enabling divorcing couples to find a way to resolve their differences on all relevant issues. First, both spouses meet with their respective Collaborative attorneys to discuss individual needs and concerns. They agree that they will all work toward an effective solution for both spouses. Then, the couple and their attorneys meet in four-way sessions to reach a settlement without involving the court. Every issue, including property division, custody, and support, is put “on the table” in these sessions.
At the beginning of the process, husband, wife, and both attorneys sign a Participation Agreement. The agreement requires both parties to:
- exchange complete financial information so that each spouse can make well-informed decisions,
- maintain absolute confidentiality during the process, so that each spouse can feel free to express his or her needs and concerns,
- reach written agreement on all issues and concerns outside of contested court proceedings,
- avoid threats of litigation or adversarial procedures, and
- authorize the attorneys to use the written agreement to obtain a final court decree.
In addition, instead of using only attorneys for this process, the couple has access to a team of professionals, each specializing in a different field of expertise. As needed, the Collaborative Team may include mental health professionals as coaches for the marriage partners, a child specialist to give the children a voice in the process, and a financial specialist (such as a qualified financial specialist or certified divorce financial analyst) to help the couple analyze the impact of their financial decisions.
All the professionals involved – the attorneys, the mental health professionals, and the financial specialists - have special training to help contain the cost of the divorce process, by using limited family funds in the most effective way possible. The couple can use the financial specialist as a neutral to work on budgeting and property distribution, and a child specialist as a neutral to work on parenting issues. The attorneys are always available for consultation as problem areas are addressed.
The Collaborative Team approach is successful because it uniquely lays a solid foundation for a future parenting partnership between the parents, and between parents and their children. It creates an atmosphere of hope for the whole family, that their future together will be trouble-free and secure, even if the family has been restructured into two homes.
Divorcing parties benefit from the skills, advice, and support of attorneys and other helping professionals while striving to work things out in a positive, future-focused manner. Working together, they are able to dissolve the marriage in a way that addresses everyone’s legal, financial, and emotional needs within the resources of the family. When a settlement is reached, the Collaborative attorneys file the appropriate paperwork required by the court to complete the divorce.