You’ve made the decision to divorce, Now you need to consider the options for moving forward. You may not be aware that most cases never go to court, and one size definitely doesn’t fit all.
Here are some different processes to consider:
- Kitchen Table. The couple negotiates all of the issues directly before filing with the court. One spouse may obtain a lawyer to file with the court or you may file on your own. This option works best for couples with low conflict, where both spouses fully understand the finances and property, and where there is a high level of trust.
Advantages: Quick and inexpensive
Disadvantages: No professional advice from an attorney (or only one spouse obtains professional advice) of legal rights and options; no formal method of information gathering (“discovery”) to ensure your spouse is being honest with financial information
- Mediation. The couple has a series of meetings with a trained mediator (usually a family law attorney) who does not represent either of you to negotiate and reach agreements. The mediator can provide legal information to facilitate negotiations, help generate options, draft the separation agreement, and, where appropriate, the parenting plan. Both spouses are advised, but not required, to consult with their own attorneys during the process. This option is best suited for couples who have disagreements but who are committed to resolving them outside of court and need the assistance of an unbiased neutral to help reach agreements.
Advantages: No court involvement; structured negotiation process; couple has control over all decisions
Disadvantages: More costly than kitchen table; a spouse that is controlling or abusive may take advantage of the other spouse during the process (i.e., there is an imbalance of power); no formal method of discovery
- Litigation. One spouse files a petition for dissolution of marriage in court. Both spouses hire attorneys. The attorneys do most of the heavy lifting in this option by preparing the case and arguments, engaging in settlement negotiations, and handling any court appearances. This option is most suited for couples who have very low trust and no interest in resolving issues out of court. Discovery is routinely used to gain financial information. If no agreement is reached, the judge makes the final decision after a trial.
Advantages: Formal discovery is available, e.g, subpoenas, depositions; temporary orders may be obtained (e.g., restraining orders, child support, and maintenance); disclosure is mandatory and under oath
Disadvantages: Often the most expensive option; adversarial couples become more so, lessening the chance of a successful co-parenting relationship; the judge, who doesn’t know you or your family, makes all of the decisions for you, so you have no control over the outcome; deadlines and scheduling are based on the court’s schedule, not yours
- Collaborative Practice. The couple and collaborative professionals have a series of meetings in a non-adversarial setting. Attorneys trained in Collaborative Law represent each spouse. The couple has the opportunity in this option of retaining other professionals trained in Collaborative Practice to assist in the process, including a mental health professional, financial professional, and a child specialist. This process addresses the legal, financial, and emotional issues of the divorce. The entire team signs agreements to work collaboratively with each other to problem solve, gather information, and explore options. All agreements are reached before being processed through the court. This option is most suited for couples who are interested in resolving their issues outside of court in a non-adversarial way and may be interested in the benefits of having trained mental health and financial professionals.
Advantages: Uses a team approach to ensure that everyone is working towards resolving the issues in a non-adversarial, respectful manner; couple has the advice of a team of professionals to cover all aspects of divorce: legal, financial, and emotional; couple is in control of the outcome of their process; no court involvement; couple learns strategies in communicating and continuing their post-divorce relationship
Disadvantages: If an agreement cannot be reached (very rare), the couple has to retain two new attorneys and incur more legal fees; may incur higher costs depending on how many professionals are involved; if one spouse is not negotiating in good faith, the process is compromised; no formal method of discovery
Whichever process you chose for your divorce, make sure you are educated and informed about all of the options.
