What is divorce?

Divorce is a process to legally end a marriage. A final judgment of divorce decides the issues of dividing property, maintenance (financial support for a spouse), legal custody/placement of children, child support and other related topics. 

How do these issues get decided?

There are a number of procedural models or methods that may be used to resolve these issues. The difference lies in the amount of attorney and court involvement, conflict and cost. Each issue, for example, child support, may be resolved either by reaching an agreement that must be approved by the court or by having a contested hearing and then a judge makes a decision. 
A few years ago, couples facing divorce did not have options that focused on minimizing conflict and emphasizing mutual problem solving. Today you have choices on the process that is best suited to your personal situation, including options like mediation and collaborative practice that are less adversarial than traditional litigation.

The following are the choices you have for your divorce process:

1. traditional negotiation / litigation,
2. collaborative process,
3. mediation, and
4. pro se divorce.

Traditional / Litigation

Litigation is the traditional divorce process. Both parties hire attorneys, who provide legal advice and represent their client in negotiations and court hearings. This model is adversarial -- each attorney advocates positions based on the personal wants, needs and viewpoints of their client. The parties communicate mainly through their attorneys, rather than directly with each other, regarding their positions, proposals and counterproposals.

The process may involve the use of formal legal procedures, known as “discovery,” to obtain financial and other relevant information. Discovery may include the use of depositions (a formal taking of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues. Each party may also hire experts to support their positions. These experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants and others. 

Most litigation divorces are eventually settled, but substantial time, money and emotion has been spent in the meantime. In addition,  parties often find later that they are dissatisfied with the outcome. They are likely to return to court in the future to change the outcome or resolve disputes.

Collaborative Practice

In Collaborative Practice, the traditional approach of bargaining from a specific position, backed by threats of litigation and court intervention, is replaced by an approach that settles cases respectfully.  The approach meets the needs of both parties and the children, and still involves legal counsel, but it eliminates the threat of or fear of court intervention at any stage.

This dispute-resolution process is based on a pledge in which both parties, and their attorneys, contractually agree that the collaborative trained attorneys will not go to court.  The key ingredient of Collaborative Practice is that the negotiation between the parties takes place in four-way meetings where both parties and their attorneys are present.  All parties sign a Participation Agreement that sets forth the principles and guidelines for collaborative family law.

The key element of the Collaborative practice process is a commitment by the parties to work toward a negotiated settlement in a structured, non-adversarial setting that protects privacy and confidentiality, rather than resorting to litigation or court intervention.  And even though the process is much gentler and well received by those who embrace it, the Collaborative process is not necessarily the best approach for everyone.  The divorcing parties must be willing to work honestly, openly, and in good faith to arrive at a fair resolution without court involvement or intervention, and the attorneys should be specially trained in collaborative practice. 

If appropriate, the collaborative divorce process may involve a collaborative team approach, including financial advisors and mental health professionals as coaches and child specialists. The goal of the experts is to educate the parties and explore settlement options to meet the needs of both parties and their children.

This process encourages creative problem solving, win-win negotiations, and resolutions that meet the needs of all members of the family. International experience indicates that the collaborative divorce process produces greater satisfaction of the parties and better results for children, and participants who are less likely to return to court to litigate issues in the future.

The most significant aspect is that the parties are directly involved in the process and retain control over their outcome.

For more information on the collaborative law process please see www.collaborativepractice.com

Mediation

In mediation, the parties hire a neutral third party to assist them in reaching agreements about their divorce. The mediator can provide information about the divorce process and guide a discussion to help resolve issues. The mediator does not need to be a lawyer and does not represent either party. Whether the mediator is a lawyer or not, the mediator cannot provide legal advice. 

Mediation may occur with parties who have hired attorneys or parties who are not represented. The parties communicate with each other directly, in the presence of the mediator. The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle. 

If the parties use mediation without attorneys, they are responsible for preparing all the required forms for the court. The parties must also appear in court for their final hearing to have their agreement approved and the divorce judgment granted.

Pro se divorce

In a Pro se divorce, the parties represent themselves and do not hire attorneys. They proceed on their own to draft and file the necessary court documents, including:

• the summons and petition
• financial disclosure statements
• any motions
• the marital settlement agreement, if any
• and the final judgment of divorce. 

The divorcing husband and wife must either work out an agreement together or present their legal disputes to the court. If an issue is not agreed upon, the parties have to be prepared to act as their own representatives, meaning they must call witnesses, prepare exhibits, ask questions of the opposing party, and tell the court why their request for specific orders should be granted, within specific procedural requirements. Pro se divorce generally works well when the parties agree and the issues are simple, such as in cases with little property and no children.

What is the difference among litigation, mediation, and collaborative practice?

Click to download an Excel spreadsheet comparing these options.