When you and your spouse were preparing to get married, your relationship was all about romance and planning your future together. The biggest decisions you may have had to make were where the two of you would live once you were married, where you would store all of your wedding gifts, and how soon you would begin a family. Making those decisions was easy because the two of you were able to communicate and cooperate with one another.
Now that you’re getting divorced, you and your spouse face many, far more complex decisions – like how you will divvy up the assets and debts from your marriage, and whether one of you will pay spousal support to the other. If you have minor children together, you’ll also have to decide how you’ll handle their custody, visitation and support, and the role that any extended family members who are currently in your children’s lives will play after your divorce. If you’re like most divorcing couples, making these decisions won’t be easy because feelings such as sadness, anger, hurt, regret, and disappointment will have replaced the love you once had for one another, making communication and cooperation difficult if not impossible for the two of you.
Given the challenges ahead, it’s important for you to know that there is more than one way to get divorced and that the particular process you choose can have a big impact, for better or worse, on the final terms of your divorce. It can also affect how difficult your divorce will be for you and your family emotionally, how much support you’ll have as you go through the process, and how prepared you’ll be for your life after divorce. Also, if you and your spouse have young children together, the divorce method you choose is likely to have a great effect on your ability to do a good job of co-parenting them post-divorce.
Do Your Own Divorce
If you and your spouse decide to do your own divorce, you’ll work out the terms of your settlement agreement and file all of the legally required paperwork on your own without the help of lawyers. (In a variation of this arrangement, some couples do their own negotiating and then one of them hires a lawyer who formalizes everything by drafting the appropriate legal documents.) Doing your own divorce has its advantages and disadvantages. Its primary advantages
The key disadvantages of a do-it-yourself divorce
If your experience mirrors that of many other people who try to do their own divorce, you and your spouse will abandon your do-it-yourself efforts eventually and hire lawyers.
Even attempting to do your own divorce is a foolhardy idea
A litigated divorce is a complicated, adversarial legal process that involves lawyers, legal procedures, court hearings, settlement efforts, and maybe even a trial – which will pit one spouse against the other in a win-lose battle.
If you and your spouse become so estranged from one another and so entrenched in your positions that your lawyers’ negotiations get you nowhere, your divorce will go to trial, in which case you’ll lose all control over the terms of your divorce, the cost of your divorce will skyrocket, and your divorce will become even more emotionally difficult and damaging.
A litigated divorce begins when the lawyer for one spouse files a Petition for Divorce (this document may have a different name in your area) with the court. When your lawyer files the petition, you are actually initiating a divorce lawsuit against your spouse, which means that you become the petitioner in the lawsuit and your spouse becomes the respondent. As the respondent, your spouse is entitled to file a formal, written answer (or response) to the information in your petition.
A waiting period begins after the petition has been filed; the duration of the period varies by jurisdiction. During the waiting period, your lawyers will begin gathering the information they need to work out the terms of your divorce. Most of the information will relate to your family’s finances – what you and your spouse own and owe (your marital assets and debts), your individual incomes, your projected monthly post-divorce budgets, etc. – but the lawyers will talk to potential witnesses and may also gather information about your individual parenting skills, health status, lifestyles, and so on.
The lawyers will also obtain information by asking you and your spouse to list all of your marital debts and assets; if you and your spouse disagree about the value of a particular asset, you may each hire your own outside expert to help you make that determination. If the experts’ information does not end your dispute, the issue will be considered at a court hearing and a judge will decide what the asset is worth.
If there are interim issues in your divorce that you or your spouse
Once the lawyers have all of the information they need, they will try to negotiate the final terms of your divorce based on the letter of the law. Your lawyer will keep you informed of any offers or counter offers your spouse may make to you through his/her lawyer, will discuss any offers or counter offers you may want to make to your spouse, and will let you know about any problems that may develop during the negotiation process.
The two lawyers may be able to work out the final terms of your divorce within the waiting period, but their negotiations will likely take much longer – three to six months in most divorces. Exactly how long will depend on the number and complexity of the issues the two lawyers are trying to resolve, the amount of discovery in your divorce, how willing you and your spouse are to compromise with one another, the number of motions and hearings in your divorce, and how aggressive the lawyers are.
If you and your spouse cannot agree on how to handle the custody of your children, a social study may be conducted, which involves a social worker meeting with you, your spouse, and your children, coming to your home, talking with your children’s teachers, friends, babysitters, and other third parties, and possibly reviewing relevant records – your children’s medical and school records, for example. The study results provide insight into your children’s parenting needs and the ability of you and your spouse to meet them. In addition, psychological evaluations of you and/or your spouse and possibly your children may also be conducted if someone requests them and if the court believes that the evaluations would be advisable. The psychological evaluations objectively determine whether you and/or your spouse have any mental-health disorders that could affect your ability to parent your children.
If you and your spouse are able to resolve all of the issues in your divorce, the lawyers will prepare a draft settlement agreement that reflects everything you have both agreed to. You and your spouse will review the draft and may ask for changes. It may take several rounds of reviews and revisions before you have a final
Once you have a final agreement, you and your spouse will sign it and then the petitioner and his/her lawyer will go to court and enter the decree. Once signed by the judge, your divorce becomes official.
Collaborative divorce is a non-adversarial, non-court process that helps couples find mutually-acceptable solutions to the issues in their divorce, protect their families (if they have minor children), and end their marriage with integrity.
If you and your spouse decide to pursue a collaborative divorce, you will each hire your own collaborative divorce lawyers, who will have received extensive training in the collaborative process. The two of you together will also hire a neutral mental-health professional, and a neutral financial professional, who will work for both of you. The mental-health professional will be a licensed counselor or social worker who specializes in working with families, or a marriage and family therapist. The financial professional will most likely be a Certified Financial Planner (CFP), Certified Divorce Financial Analyst® (CDFA™), or a Certified Public Accountant (CPA). The two neutrals and your lawyers will act as your divorce team, providing you and your spouse with guidance, advice, support, and ideas.
One of the most important aspects of a collaborative divorce is that everyone agrees up-front that going to court is not an option, and that no one will even threaten the other with a court action. Therefore, if you and your spouse opt for a collaborative divorce and later decide that you want to take your divorce to court, under the terms of your agreement, your lawyers will have to withdraw from your case and you’ll need to hire new lawyers. For this reason, everyone involved in a collaborative divorce is highly motivated to reach a negotiated settlement.
The primary advantages to collaborative divorce are that the process helps you
The collaborative divorce process gives you control over the process, and so both of you are more likely to be satisfied with the terms of your agreement – making it unlikely that you and your spouse will battle with one another over the agreement once you are officially divorced.
Mediation is a non-court dispute resolution process. If you and your spouse go to mediation, a trained, neutral mediator (who may be a lawyer, a mental-health professional, or even a financial expert) will facilitate the process by helping the two of you stay focused on the issues you’re trying to resolve, communicate productively, brainstorm solutions, and compromise with one another. The mediator will not do the negotiating for you, side with you or your spouse, tell you what you should or shouldn’t decide, or offer you legal advice. In other words, the mediator will not be a decision maker, but merely a settlement facilitator.
During “shuttle” mediation, you and your lawyer will be in one room and your spouse and his lawyer will be in a different room; the mediator will shuttle back and forth between the two rooms, conveying any offers and counter offers you and your spouse may make to one another, and letting each of you know where there may be room for compromise. You’ll be able to consult with your lawyer throughout the process.
A mediator can also meet with you and your spouse – in the same room, at the same time – with no lawyers present. A mediator doesn’t replace a lawyer; you still need a lawyer to tell you what your rights and duties are, and to review the agreement before you sign it. Your lawyer is there to look after your interests in the divorce; a mediator doesn’t represent either party.
Mediation offers many of the advantages of collaborative divorce, but it does not offer access to the emotional, legal, and financial coaching and expertise that many divorcing couples have found to be an extremely helpful aspect of the collaborative process.
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