Choosing a Divorce Process

There is more than one way to get divorced, and the process you choose can have a big impact 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.

Choosing a Divorce Process

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.

Your options are:

  • Do your own divorce;
  • Litigated divorce;
  • Collaborative divorce;
  • Mediated 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 are:

  • You’ll minimize your involvement with the legal system.
  • Your divorce will not cost a lot because you won’t have any lawyer fees or expenses other than a filing fee of between $350 and $400.
  • You and your spouse will have complete control over your divorce, including deciding when, where, and how you’ll work out the terms of your settlement agreement.

The key disadvantages of a do-it-yourself divorce include:

  • You won’t have a lawyer by your side to explain the intricacies of the law, to negotiate for you, to look out for your best interests, and to help you avoid costly mistakes.
  • If you aren’t fully informed about your family’s finances, don’t understand your legal rights, or if your spouse is a much better negotiator than you are, you may not get what you are entitled to in your divorce and you may agree to terms that are legally unenforceable.

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 if:

  • You and your spouse can’t have a calm, non-emotional conversation about the issues in your divorce. If that’s the case, your efforts to work out the terms of your divorce will be little more than an exercise in frustration and futility.
  • You and your spouse have trouble communicating with one another. For example, you can’t get your points across and/or your spouse constantly interrupts you.
  • You and your spouse are unwilling to consider one another’s points of view and to compromise with each other. In order to have a successful negotiation, you must be open to taking each other’s points of view into account.
  • You’re easily manipulated by your spouse or your spouse is abusive to you. Under such circumstances doing your own divorce is a recipe for disaster.
  • You know little or nothing about your family’s finances. If you are unfamiliar with what you and your spouse own and owe as a couple, you’re likely to end up getting the “short end of the stick” financially.
  • Your marital estate includes complicated assets, like stocks and mutual funds, investment real estate, pensions, other retirement assets, or business interests.
  • You and your spouse are unable to agree on how to share parenting time.

Litigated Divorce

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 want resolved immediately while the final terms of your divorce are being worked out, both lawyers will file temporary motions with the court. For example, you may want the right to continue living in your family’s home while your divorce case is pending, to have primary custody of your children, and to receive temporary spousal and/or child support. Whenever the lawyers are able to negotiate a temporary agreement on an issue, an agreed order is filed with the court and everything in the order becomes legally enforceable once the judge signs it. If the lawyers are not able to negotiate a temporary agreement on a particular issue, a court hearing is scheduled and a judge rules on the issue after the hearing.

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 counteroffers your spouse may make to you through his/her lawyer, will discuss any offers or counteroffers 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 agreement, or agreed decree of divorce.

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

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 to:

  • Protect your children from the harmful effects of divorce, and makes it easier for you and your spouse to raise them together once your marriage is officially over. In fact, this is one of the main reasons that parents with young children opt for a collaborative divorce.
  • Communicate productively with your spouse, even if the two of you can’t stand one another anymore.
  • Feel good about the way you’ve ended your marriage. Although going through a divorce is never easy or pleasant, the collaborative process helps you maintain your dignity. As a result, at the end of your collaborative divorce you’re more apt to feel good about the way you conducted yourself and more likely to be friends with your spouse, if that’s something that you both want.
  • Come up with creative solutions to the issues in your divorce that respond to your particular needs and the realities of your life, rather than having to settle for the cookie-cutter solutions that tend to be the products of a litigated divorce.
  • Honor the good aspects of your marriage. The collaborative process allows you to recognize and pay tribute to what is good about your marriage, rather than just focusing on all of its problems and shortcomings.
  • Move on with your life. The process helps you focus on and plan for your future rather than staying stuck in the problems of your marriage. Many spouses also find the collaborative divorce process to be healing, which makes it easier for them to put their failed marriage behind them and move forward.

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.

Mediated Divorce

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 counteroffers 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.

Divorce the Collaborative Way

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