Divorcing? You have options
Couples often find the early stages of the divorce process overwhelming due to the many issues they must consider. These include questions about support, asset division, and children. Compromising on these issues is rarely easy, and couples are often besieged with advice from well-meaning friends and family and articles like this one. The reason this process can be so perplexing is that every situation requires a unique solution. Save the simplest cases, there are no standard resolutions. Therefore, family law guidelines are intentionally flexible and lack clear guidelines and rules. In light of this, couples must first understand their options when divorcing. These include litigation, mediation, and collaborative law. Each approach has its advantages and its advocates. It is up to each couple to try to figure out which process is best for them, rather than focusing on specific solutions.
Litigation
The traditional and most common approach to dealing with divorce is litigation. Each individual hires their own attorney who presents the case in court and obtains court orders regarding the custody, maintenance and division of the property. Most attorneys who practice family law will make an initial effort to resolve the case amicably, but if an agreement cannot be reached quickly, the conventional approach is to seek the involvement of the court. There is wide variation in style among family attorneys, and clients who hire an attorney should have lengthy conversations with their attorneys about their philosophy, experience, and customary practices. For example, there are attorneys who will not negotiate until temporary warrants are obtained from a court or until a case is prepared for trial. These attorneys see any interest in an early negotiation as a sign of weakness to be exploited by the other party. While there are cases where this approach is the only appropriate one, for most people this method should be the last resort when other less aggressive approaches have tried and failed. Since aggressive litigation is the most expensive process and the one most likely to create emotional and financial pain, clients should be careful who they hire to represent them and should be careful to maintain control of their attorney. At the end of the case, the attorney moves on to the next case. Customers must deal with the remains that are left.
Mediation
Mediation is the best known alternative to litigation. Mediation encourages clients to hire a neutral divorce mediator, usually an attorney or family therapist, to meet with them. A mediator will conduct as many sessions as necessary to help clients reach agreement on their issues, without resorting to a courtroom. A mediator does not play the role of arbitrator or decision maker; rather it facilitates resolution. Mediation can be faster and much less expensive because couples only have to hire one person to solve their problems. Mediation is more likely to be the process that allows parties to preserve relationships and avoid acrimony that can create years of resentment and harm children. Most mediators encourage clients to consult with experienced family attorneys as coaches during the process so that they are fully informed as they make commitments.
Collaborative law
A relatively new approach to divorce is collaborative law. Its popularity is growing across the country as both lawyers and clients find it useful in certain cases. In a collaborative law case, each client selects an attorney who agrees not to go to court to resolve the case. Each attorney agrees in writing that they will withdraw from the case if it comes to court as a contested matter. This feature of collaborative law was developed to solve the perceived problem of lawyers agitating cases for their own benefit. By agreeing in advance not to take the case if it goes to court, all questions about the attorney’s motivation are resolved. In the collaborative law process, both parties hire the same appraisers, the same pension actuaries, thereby reducing gambling and costs. Experienced collaborating attorneys report that by eliminating the threat of ‘I’ll see you in court,’ the dispute resolution process can continue in an orderly, creative, and non-destructive manner. Although slightly more expensive than mediation, collaborative law allows the parties to have a meaningful participation of attorneys who can help with technical and creative solutions, without risking the situation escalating into war. Many clients find mediation without the active participation of personal attorneys to be a bit threatening, especially in a situation where one of the parties has superior knowledge or negotiation skills.
Regardless of which of these three legal options couples choose, they must be concerned about their own personal well-being and that of their families. Nobody likes the idea of divorce, but there is no reason why marriage has to turn into a costly court drama.
