Monthly Archives: May 2012

Which Divorce Process is for Me?

In my previous post, I touched on the 4 ways to get divorced; pro se (self-representation), mediation, collaborative divorce and litigation. I thought it would be helpful to discuss each of these briefly to help you decide which one might be the best way to go.

The first and most basic divorce process is pro se. In this process, you do not hire lawyers to represent you. You and your spouse simply roll up your sleeves, sit down at the kitchen table and work out your agreement. When there are simple financial issues and no children, this can be a very cost effective method. It’s probably not the best way to go when there are complicated issues to address such as parenting plans and alimony. The good news is, if you start this way and find it isn’t going well, you can easily move up the continuum and bring in a mediator or collaborative attorneys without having to re-file any paperwork.

If you choose to start with mediation, you and your spouse would select a trained divorce mediator to assist you by facilitating and assisting you with your private negotiations. You have the option of hiring one mediator to handle the entire process, or to use a team such as a family therapist to mediate the parenting plan, a financial professional to mediate the financial issues and an attorney to provide legal guidance and draft the final agreement (I think that is a great way to go). The mediator(s) is not an advocate for either of you. He or she will generally not give you direct recommendations, but instead answer questions and provide information that will assist you in determining the best solutions for your particular situation. Think of it as the kitchen table exercise described above, but with a professional sitting with you to help you through the challenging issues. For couples who feel comfortable sitting together and negotiating with each other, this is an excellent, low cost alternative to going it alone. Another benefit, like pro se, is staying out of court and keeping your negotiations private.

Similar to mediation, Collaborative Divorce is a way of divorcing without getting the court involved other than to bless the final agreement. This process also requires that you and your spouse work together to negotiate an agreement that considers both of your needs. The main difference is that you each hire an attorney to represent your individual interests and to give you legal advice along the way. Collaborative lawyers are specially trained in this process and have learned to throw down their battle axes and work together with their colleagues and clients to negotiate an agreement without going to court. In fact, you will sign an agreement that states that under no circumstances will your lawyers go to court with you to litigate if an agreement can’t be reached. This critical statement changes the negotiation environment for attorneys who can no longer just threaten to go to court. Their focus is one hundred percent on reaching an agreement and settling your case. No time is spent on court filings and trial preparation – saving you from both added stress and spending a lot of money! In some cases, like in mediation, you may decide to use a team approach and bring in a family therapist and/or a financial professional to help with those specific areas.

The last stop in this process continuum is litigation. If your spouse refuses to use an alternative process, if you think your spouse is hiding assets, if he or she is abusive or over-powering, or if you simply feel that you need all of the protection available through the law and the courts, this process is probably best for you. However, beware that this is usually the most costly, stressful and contentious process there is. Legal battles can drag out for years, children often suffer significant emotional stress, and your assets can be severely drained by the time you reach an agreement. It is certainly possible to find two very good lawyers who have your best interests in mind and settle the case without all of the fallout as described above. But even with the best of intentions going into a litigated divorce, the process is designed to be adversarial and couples rarely emerge from it with good feelings toward each other.

If you have children, you owe it to them to put their needs first and try to work things out with your spouse as amicably as possible. Do you want to be that divorced couple who can’t be invited to your child’s wedding because you and your ex can’t be in the same room together? Or would you prefer to be comfortable dancing with one another to honor the biggest event in your child’s life?

I urge you to conduct your own research on this subject. It is one of the most important decisions you’ll make.