Divorce is stressful. Believe it or not, deciding to divorce will not be the hardest decision you will make during the process. Since you are dealing with the things that are most important to you, often in an adversarial environment, divorcing will cause you stress and anxiety.
Conflict before, during, and after a divorce is inevitable.
95% of all divorce cases settle, meaning that sooner or later you will have to confront the conflict and find a way through.
How you choose to deal with that conflict will impact tremendously your children, spouse and your own experience and level of stress and discomfort.
Divorce is not a friendly process, at least not traditional divorce. It is not designed to be.
Divorce is highly intrusive as it forces you to disclose and discuss highly personal matters with virtual strangers.
Divorce rarely happens quickly. The legal process can be very s-l-o-w, depending on the number of contested issues and their complexity. It's quite common for a divorce to take 6-12 months or longer.
Fairness is in the eye of the beholder. What you think is fair may not be the same as what a judge thinks is fair.
The decisions you arrive at during the divorce can affect you and your family for the rest of your life. So take the time to check out your options and choose the one that best fits your situation.
What are Your Divorce Options
Things have changed since the bad old days when your only option was to hire a lawyer and duke it out. While thatremains an option, you can now choose from a menu of alternativesincluding mediation, collaborative family law, or doing it yourself or custom craft your own.
Least intrusive is you and your spouse reaching agreement over the kitchen table without outside help.
Next is mediation where a neutral third party assists you by facilitating your negotiations.
Collaborative law divorce is next in that lawyers are an integral part of the process.
Settlement conferences between lawyers are next.
Litigation comes up the rear.
There are several options online for doing the divorce yourself. Most provide the necessary forms. . .You can also get some free advice. But you are mainly on your own.
Questions to Ask Yourself:
Are you able to take the necessary time off from work? Most of what you need to do within the court system can only be done during regular business hours.
Do you have the time and access to resources to do any legal research that must be done? Remember any settlement will have to fall within the law.
Can you overcome the emotional upset and conflict that result during a divorce by yourself?
Are you and your spouse on equal ground? Or can you work together to reach equal ground before going forward.
Never Consider Do It Yourself If
Child custody is in dispute.
You believe your spouse is a danger to you or your children.
You need to assure yourself of necessary support on which you and your children can live.
You believe your spouse is hiding assets or transferring joint assets out of your name.
Your spouse has retained an attorney.
Advantages of Do It Yourself
Control. You won't be at the mercy of a judge or someone else's idea of what is fair.
Cost, but keep in mind that the divorce agreement must comply with your state's laws and will decide property, support, custody and visitation issues. A poorly drafted settlement agreement can be more costly to correct later than doing it right the first time.
Going before a court of law is considered a rights based solution in which evidence is submitted to a trier of fact based upon rules of procedure and evidence who then independently decides the parties rights and responsibilities. What the trier of fact considers "fair" may differ markedly from your expectations.
This adjudicatory model rarely meets the conflict resolution needs of couples terminating their marriages. Unlike in many civil lawsuits, the other party is not a stranger but someone with whom you will, by necessity, continue to have contact and with whom you will need continued cooperation and good-will in order to effectively parent.
Thus with Alternative Dispute Resolution's rise in the 1980's and 1990's, and with its focus on interest based negotiation, family law, and particularly divorce, quickly surfaced as a definable conflict area in need of alternative resolution strategies.
What is Divorce Mediation?
Divorce mediation is one alternative to traditional divorce litigation, for resolving conflict. It is a nonadversarial, confidential process in which the divorce mediator, a neutral, professional facilitator/s helps you both to negotiate a mutually satisfactory result to all the issues in your divorce. These typically include property distribution, parenting arrangements, and financial issues, as well as extra legal issues such as how the parents will communicate and behave around the children.
The mediator manages the process for you, assisting with communication, clarifying disagreements, determining intentions, and providing information and options to help resolve differences. At the end of the process, the parties have usually developed a tailored divorce agreement that can be submitted to a court.
It is a cooperative approach to a comprehensive agreement.Mediation sessions can include attorneys or a neutral attorney or an attorney-mediator who can inform you and your spouse of your legal rights and responsibilities, but NOTE: does not provide legal advice to either, or can be conducted without attorneys. Divorce mediators may, but don't have to be, attorneys who have experience in divorce cases.
Benefits of Divorce Mediation
Protects the Children.
You both and the mediator work intensely on how best to work together to establish a loving parenting arrangement.
Cost Efficient and Economical.
The whole process takes approximately 10 - 2 hour sessions and costs between $3,000-$7,000. A recent New York Times article set the cost of traditional divorce at $10,000-$30,000.
Mediation can usually be scheduled within a few weeks of the initial phone call and completed within 2-4 months. And your schedule counts so the sessions are convenient.
Control. The mediator doesn't tell you what to do; the outcome is in your hands at all times.
The whole mediation is confidential and privacy is protected.
Preservation of the continuing relationship
and a way to interact effectively in the future. Particularly important to parents.
Provides creative solutions
to previously intractable problems.
Couples develop a real sense of ownership of the agreement which usually translates into compliance with its terms.
Models a positive conflict resolution experience for your kids
and teaches them that conflict does not inevitably lead to helplessness, despair and out-of-control anger.
When Not to Use Mediation
In cases of domestic violence.
When one party refuses to fully disclose pertinent information, e.g. financial information.
Collaborative Law or Collaborative Law Divorce or CLD, is a continuation of the trend started with mediation to empower you in your divorce proceedings. Collaborative law divorce employs a team approach to help divorcing parties reach a mutually satisfactory, durable agreement. It is the newest alternative dispute resolution addition in family law. You and your spouse each have your own lawyer. However, both lawyers as well as any experts you jointly employ are trained in the Collaborative Dispute Resolution Process.
This training includes interest based negotiation, the structure and choreography of CLD and interpersonal conflict resolution skills.Fundamental to this approach is that you and your spouse agree to resolve the divorce without court intervention. Of key importance is the Participation Agreement you and your spouse sign before beginning the process, which provides both a road map and ground rules.
This Agreement provides, in part
The Disqualificaton Provision, which states that your lawyers will not litigate the case. If the process fails, and only litigation remains as a choice, the original attorneys must withdraw and you must retain new lawyers. There is usually a 30 day waiting period.
You and your spouse won't take advantage of each other's mistakes.
You both will freely disclose all pertinent information and will not hide any material facts. A material fact is one on which you would base an important decision.
As in mediation, what is said in the joint sessions is confidential and remains so.
All experts will be neutral and jointly hired by both parties and their children. And, if you go to court, new experts will have to be employed.
Everyone will behave courteously and in good faith.
Benefits of Collaborative Family Law
By removing litigation from the mix, it frees up the information flow and allows everyone to propose and consider creative solutions that are unique to your situation.
Protects the Children. You work together on how best to work together to establish a loving parenting arrangement
Durable. Couples develop a real sense of ownership of the agreement which usually translates into compliance with its terms.
Preservation of the continuing relationship and a way to interact effectively in the future. Particularly important to parents.
Privacy. The whole process is confidential and privacy is protected.
Models a positive conflict resolution experience for your kids and teaches them that conflict does not inevitably lead to helplessness, despair and out-of-control anger.
Control. The outcome is in your hands at all times. You can leave at any time and proceed with litigation, if you choose.
Time. Everyone's schedule counts so the sessions are convenient.
You can speak and be heard in a safe environment.
Collaborative Family Law Team
A typical team consists of two lawyers, two divorce coaches, a financial professional and a child specialist or parenting coordinator. What you can expect from each:
Lawyer. You each hire a lawyer to advise you on all matters of law, to assist in negotiation
Divorce coaches - experienced mental health professionals with collaborative training who assist in reducing conflict, help manage emotions and facilitate communication often between two parties with considerable anger.
The accountant or financial planner provides post-separation and longer term budgeting, economical analysis of proposed child support and alimony agreements, tools for analyzing the impact of alternative property division scenarios and tax planning.
The child specialist, when needed, is the children's advocate in the process assuring that their needs are addressed while shielding them from direct participation.
A mediator, if needed to help resolve any intractable issues.
How Much Does All This Help Cost
According to an Associated Press wire service report last year, the median cost for a collaborative divorce was $19,723. Mediation was by far the least expensive option, with a median cost of $6,600. Compare these to, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.
Both employ the same interest based negotiation approach which focuses on meeting your underlying needs and concerns which fosters cooperation rather than the hardend positions of traditional bargaining. However, in mediation there is a third party neutral who facilitates the negotiation between you and your spouse. The mediator does not provide independent legal advice but you are strongly encouraged to consult an outside attorney as needed. In the collaborative law approach, you have your own lawyer who provides you with independent legal advice on any proposed settlement.
For more about divorcing collaboratively, click on one of the links below.