Divorce Process Options
Once you have arrived at the decision to divorce, it is time to give some thought to the available divorce process options. There are many ways to get divorced, and each option has differing levels of involvement from attorney, the court, and other professionals. Choosing the process option that is the best fit for your family can help alleviate some of the stress that comes with family restructuring.
If you think of divorce as your destination, then divorce process options are the potential methods of transportation to get you there. Depending on where you start and where you want to end up, you may need a little or a lot of help getting there.
Factors to Consider in Selecting a Process Option
- How complex is your case? Are there numerous and/or potentially complicated assets to divide, such as real property, businesses, retirement, or investment accounts?
- Do you anticipate needing advice from an attorney before you will be able to agree to a settlement?
- Do you and your spouse already agree on any of the issues in your divorce?
- Are you and your spouse willing to compromise on some issues in order to reach a settlement?
- Are you comfortable negotiating directly with your spouse, or would you prefer to have support from an attorney advocating on your behalf?
- Do you trust your spouse to voluntarily comply with the rules of an out-of-court divorce process?
- How much time and money are you comfortable spending to achieve the results you want?
- Would you prefer to resolve your case peacefully, or do you anticipate a high amount of conflict and confrontation will be required to reach your desired result?
- Is there a power imbalance between you and your spouse that could spill over into the divorce process? If so, are there safeguards that could be put in place to make both spouses comfortable negotiating outside of court?
- Do you prefer a basic agreement with room for interpretation or a highly detailed settlement aimed at addressing every possible situation that might arise down the road?
- Would you and your spouse benefit from jointly consulting with a child specialist for help with your parenting plan, a financial neutral for help with asset division, tax, and support questions, or a divorce coach for help addressing issues related to communication and mental health during the divorce process?
Your answers to these questions will help us recommend and/or customize a process option best suited to meet your needs. At Posey Legal, P.C., we have the tools and experience to guide you through whichever process you select.
DIY Divorce, sometimes called “kitchen table” divorce, is the process of working directly with your spouse to resolve your divorce on your own. It requires trust, patience, effective communication, knowledge about your financial circumstances, and knowledge of the legal issues that must be addressed in your divorce paperwork.
DIY divorce is typically the cheapest option; however, it is not necessarily the most cost-effective. Mistakes and omissions can be extremely costly and/or impossible to correct after the fact. Blind spots can lead a party to inadvertently agree to a resolution that is unfair, unbalanced, or not in the best interest of the children.
Most attorneys nowadays offer some form of “unbundled” legal services, which means they will consult with you as needed during your case. Your consulting attorney can provide education on the issues that need to be resolved and help you brainstorm and evaluate settlement options. They can review or prepare your final paperwork, ensuring that it accurately reflects your final agreement and contains sufficient detail to address future contingencies.
All DIY cases can benefit from a consulting attorney. However, cases with the following issues have higher stakes and more complexity, and parties run the risk of overlooking significant details if they try to resolve them on their own.
- Spousal support
- Moving away with a child
- Children with special needs
- Cases involving abuse or safety concerns for a parent or a child
- Complex property division issues, including division or retention of:
- Real property
- Business interests
- Restricted stock options
- Retirement plans and benefits, including survivor benefits
- Investment portfolios and/or properties
- Family trusts
Avoid costly mistakes by hiring a consulting attorney to provide advice as needed throughout your case.
Private mediation is the process of resolving your case using a neutral mediator to guide the parties through the decision-making and filing process. The entire process takes place outside of court, meaning nothing is filed with the court until a full agreement has been reached. The mediator does not represent either party and cannot provide legal advice. Instead, the parties are encouraged to consult with an attorney of their choosing as needed throughout the mediation process. The mediator’s role is to:
- Work with the parties to identify, prioritize, and share their goals
- Help the parties identify the issues to address in their divorce settlement
- Assist the parties in exchanging documents and information so that they can make informed decisions about their case
- Work with the parties to brainstorm and evaluate options
- Facilitate conversations and negotiations to reach an equitable compromise
- Prepare the final paperwork and file it with the court
Private mediation sessions are typically about an hour and a half in length and can be done either in person or by remote video conference. The mediator and the parties meet together in the same space to share information and discuss options. While there is no set number of sessions in which any given case may resolve, many mediation cases are resolved somewhere between three and six sessions. Once a full agreement has been reached, the mediator can prepare all the necessary paperwork to finalize the divorce with the court, without the need for a court appearance.
There are many benefits to mediation. For example, the parties are in control of the timing of the case and, if they both agree, can speed things up or slow things down as needed. Everything discussed in mediation is confidential and cannot be brought up in court later. Specialists can be brought in to help in certain areas, for example the parties may need an actuary to value a pension benefit, a vocational evaluator to help a party come up with a plan to transition back into the workforce, or a child specialist to help them work out the details of a parenting plan. In private mediation, these specialists are jointly retained by both parties, helping to keep costs low. Overall, mediation cases tend to resolve more quickly and for less money than other methods.
Private mediation relies on the parties’ voluntary commitment to participate in good faith and to communicate openly, honestly, and respectfully during the process. It may not be a good fit for cases in which the parties cannot be in the same room together or do not trust one another. The mediator will help facilitate communication between the parties, but the parties need to feel comfortable speaking on their own behalf. The mediator will help the parties identify issues and potential solutions, but the parties must be able to decide what to do on their own (or with the help of their consulting attorney).
Collaborative Divorce is the process of resolving your dispute outside of court using a team of Collaboratively trained professionals. Each party is represented by an attorney who provides their own client with legal advice and advocacy throughout the process. Depending on the needs of the case, additional collaborative team members may include a divorce coach to help with communication, a child specialist to help with the parenting plan, a financial neutral to help with the division of assets and financial support issues, or a vocational evaluator to help a party come up with a plan to transition back into the workforce. Each professional works only within their area of expertise.
Collaborative Divorce is similar to private mediation in that it takes place over a series of meetings, the clients control the timeline, and nothing is filed with the court until a full agreement has been reached. However, rather than meeting with consulting attorneys in between mediation sessions, each party has their own attorney present at every meeting. This makes Collaborative Divorce a good choice for couples who prefer to resolve their case outside of court, but who need more help than a mediator can provide. For example, some parties have difficulty making decisions without having their attorney present to advise them, others find it easier to participate in meetings with their attorney by their side. Cases with complex financial or other issues can benefit from the assistance of a team of collaboratively trained professionals.
At the beginning of a Collaborative Divorce case, the parties sign a Collaborative Participation Agreement which lays out the ground rules of the process. Specifically, the parties agree to participate in good faith, to communicate openly and honestly, and to correct one another if they notice a mistake has been made. Most importantly, the parties agree that if they are unable to reach a resolution through the Collaborative Process, they will transition over to new litigation attorneys. In other words, the Collaborative attorneys will never represent either party in a litigated proceeding. The purpose of this agreement is to create a safe space where both parties can speak openly and honestly about their goals without worrying that their spouse’s attorney will one day be able to use their statements against them or cross examine them in court.
Collaborative Divorce is designed to empower clients to make lasting, balanced, and respectful agreements. Education, support, and guidance from the collaborative team helps the parties learn new ways to communicate during periods of conflict, setting them up to become effective co-parents and problem solvers on the other side of the divorce.
As with private mediation, Collaborative Divorce may not be the best fit for cases in which one or both parties are unwilling to compromise or the parties do not trust one another, and cases involving domestic violence or emotion abuse.
Divorce and Family Law Litigation
Divorce litigation is the process of resolving your case using the rules and timelines dictated by the court and applicable law. The process was designed to be adversarial, and it can be costly and stressful. However, it is the only way to achieve a final resolution if the parties are unwilling to compromise or unable to reach an agreement without a third party deciding the outcome.
Typically, each party is represented by an attorney whose job is to work with their client to understand the facts of the case and their client’s goals, to provide legal advice and help craft offers of settlement, to communicate that information to the attorney for the opposing party, and to advocate on behalf of their client in court if a settlement is not reached. In litigated cases, all communication from the parties, the court, and opposing counsel are routed through your attorney, typically in the form of letters, emails, and phone calls.
Litigation is designed to be adversarial, and the process can be costly, time consuming, and stressful. However, in a litigated process, a client can ask the court to use its powers to compel, restrain, and/or sanction an opposing party who does not follow the rules. For this reason, divorce litigation can be a good fit in cases in which the parties do not trust one another, where there is domestic violence, emotional abuse, or the children are in danger, or where one or both parties are unwilling to compromise.
Mediation within the Divorce and Family Law Litigation Process. If the attorneys are not able to resolve the case through direct negotiations, the case will usually be referred to mediation before it can proceed to trial. Mediating a litigated case as a last-ditch effort to reach a resolution before trial is quite different than the out-of-court, private mediation process described above. The attorneys will prepare the case for mediation by briefing the privately retained mediator (often a retired judge) on the facts and legal arguments involved in the case in advance of the mediation date. Mediation typically takes place over the course of one full day, with the mediator shuttling back and forth between the two sides, relaying offers and encouraging compromise. Often the parties are exhausted and ready to settle by the end of the day.
Trial. If the parties are unable to resolve their issues through settlement negotiations or in mediation, the case will be set for trial. Divorce trials can take place over multiple days, stretched over a period of months. They are often costly. During the trial, each side will have a chance to tell their story to the judge. This is done through testimony of the parties, lay witnesses, and expert witnesses, the presentation of evidence such as financial records, and legal arguments made by attorneys. Once the evidence and arguments have been made, the judge delivers a ruling on all issues presented that is binding on the parties. Divorce trials can be very costly, they are open to the public, and there is no way to guarantee a particular outcome. The adversarial nature of litigation often pits a divorcing couple against one another, which makes it difficult to amicably co-parent once the dust has settled.
Contact us at Posey Legal, P.C. for assistance deciding which divorce process option best meets your goals in terms of control, privacy, cost, and timing. We can serve as a neutral mediator working directly with you and your spouse to reach agreement, counsel you through a Collaborative Divorce, fight for you in a litigated process, or provide consulting services on an as needed basis.