WHAT IS DIVORCE?

Divorce is a process to legally end a marriage. A final judgment of divorce decides the issues of property division, maintenance (financial support for a spouse), legal custody/placement, child support and other related topics.

HOW DO THESE ISSUES GET DECIDED?

There are a number of procedural models, which may be used to reach resolution of these issues. The methods vary in degree of attorney and court involvement, conflict and cost. Each issue in a divorce case may be resolved by: (a) the parties reaching an agreement that must be approved by the court; or (b) having a contested hearing after which a judge or court commissioner makes a decision. These models include: (1) traditional negotiation/litigation, (2) collaborative divorce, (3) mediation, and (4) pro se divorce.

TRADITIONAL/LITIGATION

Litigation is the traditional divorce process, whereby both parties hire attorneys, who provide legal advice and represent the positions of their client in negotiations and court hearings. This model is an adversarial process in which each attorney advocates positions based on the personal wants, needs and viewpoints of their client. The parties communicate primarily through their attorneys, rather than directly with one another, regarding their positions, proposals and counterproposals on the issues in their divorce.

The process may involve the use of formal legal procedures, known as “discovery” to secure financial and other relevant information. Discovery may include the use of depositions (a formal taking of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues. Further, each party may hire experts to support their positions. These experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants and others.

If the parties dispute the legal custody or physical placement schedule of their children, the court will appoint a third attorney, called a Guardian ad Litem, to participate in the case as an advocate for the “best interests” of the children. Ultimately, if agreements are not reached, parties and other witnesses testify before a judge who makes a ruling on each disputed issue. Most litigation divorces are eventually settled, but often after substantial time, money and emotion has been spent in conflict. Further, both parties often find that they are dissatisfied with the outcome and are likely to return to court in the future to change the outcome or resolve disputes.

COLLABORATIVE DIVORCE

Collaborative divorce is a dispute resolution method whereby each party hires an attorney and all four work together in a cooperative, non-adversarial process with a mutual goal of reaching a fair settlement of all issues, while avoiding the emotional and financial expense of traditional litigation. The parties and attorneys agree to communicate and negotiate directly with one another in structured four-way settlement meetings. A structured process for gathering information and communicating at and between four-way meetings is also established and followed. Binding commitments, pursuant to a Stipulation and Order, are made by both parties and their respective attorneys to voluntarily disclose all financial and other relevant information, to proceed respectfully and in good faith in settlement negotiations and to refrain from the threat or use of litigation. The parties agree that they will not go to court to resolve issues. Key to the process is the agreement that if either party chooses to go to court, both collaborative attorneys must withdraw. Collaborative attorneys are specifically trained as settlement specialists, rather than potential litigators. When necessary, experts are brought into the process as neutrals who are jointly retained by the parties. The collaborative divorce process may involve a team approach; including financial advisors and mental health professionals as coaches and child specialists. The goal of the experts is to educate the parties and explore settlement options to meet the needs of both parties and their children.

This process encourages creative problem solving, win-win negotiations, and resolutions that meet the needs of all members of the family. International experience indicates that the collaborative divorce process produces greater satisfaction of the parties and better results for children, and parties who are less likely to return to court to litigate issues in the future. Most significantly, the parties are directly involved in the process and retain control over their outcome.

For more information on the collaborative law process please contact our office or see www.collaborativefamlaw.com.

MEDIATION

In mediation, the parties hire a neutral third party to assist them in reaching agreements concerning their divorce. The mediator can provide information about the divorce process and guide a discussion to help resolve issues. The mediator need not be a lawyer and does not represent either party. Whether the mediator is a lawyer or not, the mediator cannot provide legal advice. Mediation may occur with parties who have hired attorneys or parties who are not represented. The parties communicate with one another directly in the presence of the mediator. The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle. If the parties proceed in mediation without attorneys, they are responsible for preparing all the required forms for the court, though a mediator may help prepare forms for the parties. The parties must also appear on the record at court for their final hearing to have their agreement approved and the divorce judgment granted.

PRO SE divorce

In a Pro Se divorce, the parties represent themselves and do not hire attorneys. They proceed on their own to draft and file the necessary court documents including the summons and petition, financial disclosure statements, any motions, the marital settlement agreement, if any, and the final judgment of divorce. In some counties, Pro Se form kits are available at the courthouse to assist the parties. The divorcing husband and wife must either work out an agreement together or present their legal disputes to the court. If an issue is not agreed upon, the parties have to be prepared to act as their own representatives, meaning they must call witnesses, prepare exhibits, ask questions of the opposing party and tell the court why their request for specific orders should be granted within specific procedural requirements. Pro Se divorce generally works well when the parties agree and the issues are simple, such as in cases with little property and no children.