"When first beginning a divorce and choosing whether to litigate, mediate, or use collaborative divorce, what is the best divorce process for most people?"
That is dependent on the parties themselves, their personalities, and the issues involved in the case. The collaborative model requires two parties that, despite the fact that they’re getting a divorce, do trust each other on a certain level and two lawyers that trust each other.
Once you have signed the collaborative agreement, you are essentially locked into that process. In order to opt out, both sides would have to get new attorneys, pay new retainers, and essentially start over. To be successful in the collaborative model, you’ve got to be willing to trust that your spouse is going to be transparent in terms of the assets. The lawyers have to trust each other so that if expert witnesses are obtained to value businesses, trade separate property issues, or give opinions on child-related issues, you trust that everybody is going to use the same expert and that the experts are not going to be biased towards one of the attorneys.
It takes a lot of trust to lock yourself into the collaborative model, but if you have trust, then it’s a good arena to handle the divorce case. Unfortunately, in most of our divorce cases, you don’t have that trust between the parties if they are about to start the divorce process.
In the litigation model, one pattern we see is a husband who was the breadwinner and controlled the finances and a wife who alleges he is very controlling and wants everything done his way. Sometimes the litigation model might be a better option, because you can get a person like that in front a judge and they can see that their spouse is not in control; the judge is in control.
In the litigation model, if you can’t get a case resolved and it looks like it’s going to be tried, most judges in Texas will ask you to go to mediation, but there are few exceptions. Mediation is a great process to get cases resolved, but you’ve got to consider the cost. To go mediation with a good mediator and two attorneys can easily cost the parties $8,000 to $10,000 for a daylong mediation session. You need to identify the issues that need to be tried in a case, find out if there is a realistic chance that you can settle in mediation, and make sure that you’ve got a good mediator who’s really going to try to resolve the issues before you have to go to a trial.
Brian Loughmiller is a partner at the McKinney, Texas law firm of Loughmiller Higgins. Serving family law clients throughout North Texas and the DFW Metroplex area, Brian and his partner, Eric Higgins, have 47 years of combined trial experience. One of the top family lawyers in the state, Brian has been recognized as a Super Lawyer every year since 2005.
Eric Higgins is a family attorney serving residents of North Texas and the DFW Metroplex area who have family law concerns and divorce issues. Eric and his partner, Brian Loughmiller, have over 47 years of combined trial experience, which provides their firm with the experience necessary to guide divorcing clients through what can otherwise be a challenging and confusing process.
You can learn more about Loughmiller Higgins P.C. at www.familylitigation.com.
Certified Divorce Financial Analyst
Business Valuators / CPAs