Divorce is a trying time for every individual involved, and there are many misconceptions about the process and experience. It doesn’t help that the public portrayal of divorce is often as a knock-down, drag-out war between two angry people, centered in a courtroom.
The reality, however, is often far different: the majority of divorces will settle long before trial. There are several different ways to arrive at an amicable and mutually beneficial conclusion to a marriage. The key is to identify which of the divorce options is best suited for your family. As part of our upcoming series around the life-cycle and lifestyle of divorce, here are the five different pathways in which marriages end:
1. Do-It-Yourself Divorce
Yes, this actually is possible and is often the easiest, most efficient pathway. This is a viable solution for couples that, first and foremost, have learned about how the law applies to their situation and amicably agree on everything. Typically, this method is used by couples who have been married for just a few years, share no major assets - like owning a house, for example, have no applicable support (alimony), and have no minor children, or shared parenting issues. In these cases, the divorce process can often be handled by working with your spouse to file the appropriate paperwork with the court. Most county courthouses, and some through their online portals, provide the appropriate paperwork and guidance.
The mediation process is the venue that provides the most creative and interest-based solutions for each family. In mediation, both spouses work together with a third-party professional, often a lawyer, who is trained in conflict resolution. The mediator’s responsibility is to help both spouses reach an equitable agreement – the mediator is not an advocate for either client.
For mediation to be successful, there are two key components that must be present. It is essential that a spouse assess whether he/she and the spouse are fundamentally capable of compromise. If one spouse is incapable of accepting anything less than an equitable settlement, then mediation is not the right fit. The second component is preparation that includes a complete analysis of the marital estate, income and expenses, and ideas that have been discussed with a financial or legal expert. Mediation provides an environment to evaluate a range of settlement scenarios; advance preparation by both spouses will allow for a far more efficient and productive series of meetings to negotiate the the final terms.
Lastly, mediation is flexible. It allows for the introduction of financial experts, legal experts, or any professionals who the team needs to assist the conversation and to guide and formulate the conclusion. Legal advice, outside of mediation, is still necessary, but the role and expense for a lawyer can be significantly contained.
3. Collaborative Law
This is a specialized process designed to leverage trained lawyers to facilitate a peaceful negotiation. In Collaborative Law, both spouses hire divorce lawyers trained in collaborative practice. Both spouses and both lawyers sign an agreement stating their commitment to settling the case without ever going to court. Collaborative Law is a team model that brings together a group of experts to settle each case. The team includes two attorneys, and joint mental health experts (or sometimes referred to as divorce coaches), financial and where applicable, child development experts; there is a specific methodology that guides the process from beginning to end.
Collaborative Law introduces a new context for lawyers; they are both committed and obligated to settle and therefore, never adopt an adversarial posture that threatens removal to a court proceeding as a bullying tactic. Another advantage is that the process and all documentation is confidential and not filed in the public record. And finally, the presence of experts ensures that both parties take a holistic view of the incoming life-changes and their impact on a family, meaning there’s considerable amount of thought put into creating a healthy, successful environment for all parties involved, including the children.
4. Lawyer-Assisted Settlement
This is the traditional and most commonly used process that is fairly straightforward: in a lawyer-assisted settlement, your lawyer works directly with your spouse’s lawyer to develop a settlement agreement that you both then sign. This is a court-managed process in which your case is in the system, all the legal procedures of law must be followed and documentation filed for every step.
Lawyer-assisted settlements have the advantage of minimizing the amount of direct contact two spouses have with each other. This is particularly advantageous if one or both spouses are having a difficult time managing their emotions during the process, or if one feels that the complexity of the financials is too intimidating to negotiate in a mediated environment.
5. Litigation - Divorce by Trial
No one ever selects litigation or a court trial to settle a divorce. Litigation is the direct result of the failure of all other options. Many courts have various processes, such as settlement conferences with a judge, court-ordered mediation, etc. that attempt to encourage a couple to try before scheduling a trial in an attempt to prevent cases from going to trial. Trials are hideously expensive, cause tremendous angst and given the unique nuances of each family’s situation, rarely result in a judgment that is ever considered fair or equitable by either party.
Choosing the Right Pathway for You
The most important thing to remember is: no matter which path you choose, it’s important to approach your divorce from the right perspective. Divorce is a transaction to end a marriage that is guided by applicable family law; it is not about punishing or hurting your spouse or spending all of your assets in the process. If both parties in a divorce can enter the proceeding with an empathetic and reasonable mindset that starts with a plan for both people to emerge successful, then resolutions can often be achieved that are mutually beneficial and provide the best possible outcome for everyone involved.
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