Divorce is a stressful time for everybody involved, and there are many misconceptions about the process. It doesn’t help that the public portrayal of divorce is often as a knock-down, drag-out war between two angry people. The reality is far different. Estimates suggest that 85-95 percent of divorces settle out of court. Did you know that there are five ways to get a divorce?
If you start with the assumption that the transactional process will be amicable and affordable, you can customize the team and process to suit your family and budget. The key is to identify which of the options is best suited for your family and to take the lead, rather than let the system lead you.
1. Do-It-Yourself Divorce
Yes, this is possible! And yes, this is a viable solution for couples who have learned how the law applies to their situation and amicably agree on terms, otherwise known as an “uncontested” divorce. That might sound like fantasy, but when a divorce does not include complex property, support, or child-related issues, it comes down to paperwork and filing. That is not to suggest it shouldn’t be taken seriously, but far too often families with no substantive issues and shorter-term marriages assume they need complicated divorces when in fact they don’t. For specific DIY guidance, follow your county courthouse guidelines in person on online. It will include signed paperwork by both spouses, a filing fee, and a wait time mandated by each county.
Mediation is a process in which a family can reach the most creative interest-based solutions. In Mediation, both spouses work together with a neutral third-party professional, often an attorney, who is trained in conflict resolution. When managed correctly, this can be the most economical solution to reaching a settlement.
For Mediation to be successful, two key components must be present. 1. It is essential that a spouse assess whether they and their spouse are fundamentally capable of compromise. If one spouse is incapable of accepting anything less than 100 percent, or if there is an imbalance of power, then Mediation, is not the right fit (though this can be mitigated with experts, read on). 2. Both spouses must complete advance preparation. The analysis of the marital estate, cash flow and the discussion of settlement proposals with a legal and/or financial expert in advance of the Mediation will set the right tone and allow for a far more constructive discussion. Legal advice, outside of Mediation, is still necessary, but the role and cost for a lawyer can be significantly contained.
Lastly, Mediation is flexible. It allows for the addition of financial, legal, or any experts the team needs to guide the discussion and settlement. Adding these experts can mitigate a difficult dynamic when fundamental compromise is possible.
3. Collaborative Law
The term Collaborative can be confusing, but in this context, it refers to a specialized team model with specially trained attorneys and experts who facilitate a constructive and informed settlement discussion. In Collaborative Law, both spouses hire collaboratively-trained attorneys with whom they sign an agreement stating their commitment to settling the case without ever going to court. (In fact, if the case is unsuccessful in this model and “transitions out” the couple will have to hire new lawyers and start all over again.) In addition to the lawyers, the team includes divorce coaches, financial and where applicable, child development experts; there is a specific methodology that guides the process from beginning to end.
Collaborative Law introduces an unexpected context for attorneys; they are both committed and obligated to settle and therefore, never adopt an adversarial posture that threatens the removal of the case to a court or litigated proceeding. Another advantage is that the process and all documentation is confidential and not filed in the public record. And finally, the presence of experts ensures that both spouses take a holistic view of its impact on the family. Much like Mediation, however, it does require cooperation and participation by both spouses who have an interest in settlement.
4. Attorney-assisted Settlement
This is the traditional and most commonly used process that is fairly straightforward. Each spouse hires a lawyer who works directly with the other to negotiate a settlement which is then documented in the final Marital Settlement Agreement or MSA. This is a court-managed process in which your case is in the system, all the legal procedures of law must be followed, and documentation filed for every step.
Attorney-assisted settlements have the advantage of minimizing the amount of direct contact two spouses have with each other. This is particularly helpful if one or both spouses are having a difficult time managing their emotions during the process, or if one feels that the complexity of the financials and the imbalance of power is too intimidating for negotiation in a mediated environment. With this process, there remains the threat that if the negotiation fails, the case will end up in court, so it is incumbent on the spouses to choose attorneys who are respected and capable of settling, otherwise, the process can be slow, expensive and clouded with the threat of adversity. As with all pathways, the more prepared and informed you are, the better the experience.
5. Litigation — Divorce by Trial
Litigation is the direct result of the failure of all other options. No one ever selects litigation or a court trial to settle a divorce. Many courts have various processes, such as settlement conferences with a judge and court-ordered Mediation to encourage a couple to exhaust attempts at settlement to try prevent cases from going to trial. Trials are hideously expensive, cause tremendous angst and given the unique nuances of each family’s situation, rarely result in a judgment that is ever considered fair or equitable by either party.
Choosing the Right Pathway for You
Divorce is a transaction guided by applicable family law to end a marriage, or in other words, a business contract. It is not about punishing or hurting your spouse, being compensated for your pain and disappointment or spending all of your assets in the process. The emotions are real and can be paralyzing, but that isn’t divorce, that is the break-up. Choose the path for divorce that will successfully lead your family forward with a focus on the future, not the past.
Note: Whenever possible, work with a Parenting Plan mediator to create a set of agreements and a schedule for your children, and other than the financial aspects of support, keep your children out of the divorce process.