When I meet with a new divorce client, beyond listening to their story and helping them understand the legal issues they are facing, I always reserve part of the initial meeting for a process options discussion.
What is a process options discussion?
There are several ways to get a divorce resolved, and the process discussion helps inform my clients of the options they have available.
Most divorces are not the result of a trial. That may come as a surprise to those whose only experience with divorce comes from TV and movies. Trials (at least, the way popular media portray them) make for terrific entertainment—the witness caught in a critical lie; the crafty lawyer triumphing by asking the gotcha question—but they are very rare in the world of divorce, because most cases are settled without a trial.
That’s where the process options discussion comes into play.
A thorough lawyer will explain to you that the great majority of divorces are resolved through some kind of negotiation process, either with lawyers negotiating on your behalf or with you directly involved in the negotiations through mediation or collaborative divorce. Most divorce clients find a negotiated settlement to be the preferred option for several reasons:
Control over the outcome:
In a trial, a judge, who has no stake in the result and who has only a very limited opportunity to understand your family’s unique situation, will make decisions that will have a long-term impact on your family.
In a negotiated case, you have the ability to say no to terms you are not comfortable with.
In a mediation or a collaborative divorce, the focus is on what is important to each spouse and what may best benefit the children rather than on what the law may dictate.
Time:
Trials can last from a few hours to several days and, in some instances, more than a week. Divorce trials are frequently broken up—a day or two in one week, then a couple more days a week or two later—keeping you engaged in courtroom matters for a long period of time.
Judges do not make immediate decisions. You may wait weeks or even months for a decision.
Lawyers often ask judges to amend their judgments with after-trial motions that can take months to resolve.
Appeals can stretch out the process for an additional period of a year or more.
Negotiated divorces depend upon the spouses’ readiness and willingness to reach agreement and are not beholden to a court’s schedule.
Once a negotiated agreement is reached, the judgment can be entered right away, and there are no after-trial matters to extend the process.
Cost:
Preparing for trial, trying a case, engaging in post-trial matters, and appeals can add a great amount of cost to a divorce process.
Most negotiated divorces can be resolved for a fraction of the cost of trial, through not having to prepare for trial, not having to pay professionals to conduct the trial, and not having to deal with post-trial issues and appeals.
Hidden benefits:
When a case is tried in court, the spouses can spend months gathering evidence against each other in their efforts to convince a judge to rule in their favor. Then, after having focused on everything that is bad about each other, they must co-parent, which requires a high level of cooperation to be successful. That shift can be difficult and can take a long time.
Having spent so much time finding fault with each other, couples that try their divorce cases will frequently find themselves back in court a few years later hoping to modify the judgment.
When a case is resolved through mediation or collaboration, the focus is always on future success rather than on past wrongs, so the couple has a much better chance of enjoying a cooperative co-parenting relationship.
If parents are cooperative during divorce negotiations, they have a better chance of cooperating over any changes to the judgment that may be required as their circumstances change. If they can resolve those issues peacefully, they can both continue their cooperation and save the time and money of a court-based modification process.
Every divorce is different, and there are certainly instances in which a trial is the only way to get the case resolved, but an understanding of the process options will help guide you to the best way to deal with your family’s unique situation.
