4 Ways To Get Divorced
know your options first
Do you know that you have options when it come to how you get divorced. Litigation, the best known approach to divorce, is actually only one of 4 options. It is in your best interest to understand all 4 options before taking a first step towards divorce. While divorce is never easy, you may find that you are a good candidate for an approach that is less costly and will help you move forward to the next stage of your life more quickly.
Here is an overview of your options in California.
As a divorce mediator, the attorney facilitates the conversation, but does not give legal advice. In other words, the attorney, in order to stay neutral, will provide legal education to help the couple understand their legal rights but will not provide an opinion on the outcome should the case go to court.
In divorce mediation, both clients generally attend each meeting together, although the attorney will occasionally meet with clients separately if necessary. The attorney explains the process to both clients, how the decisions they make will affect them, and takes responsibility for preparing court paperwork. Mediation clients generally split the cost evenly between them, although this is subject to negotiation.
Mediation is confidential, meaning the attorney will not divulge any information that is discussed in meetings to outsiders nor will they testify if the mediation does not result in an agreement. If the clients are unable to reach a marital settlement agreement and choose to hire separate attorneys to represent them in a divorce, the information the other spouse shared or agreed to during mediation is not admissible as testimony in court. Knowing this, the parties are able to be creative in proposing settlement options and say what they need to say without being concerned about regrets.
Mediation + Coach. When the parties have emotional issues that make it more difficult to resolve the issues, mediators will invite a “coach” into mediation sessions Coaches are highly trained at diffusing stressful emotional situations and helping the parties to clarify those things that are the most important to them.
Mediation is inexpensive in comparison to litigation.
In collaborative divorce each client has their own attorney who is providing legal advice. What makes collaborative divorce different from litigation is that all parties, including the attorneys, agree they will not take the case to court. The clients and attorneys all work together, but just like mediation the issues are kept out of court until the final agreement has been reached and the paperwork is ready to go to court. Through this process the attorney is the advocate for his/her client. However, in the event the collaborative process does not resolve the dispute, the client cannot use the collaborative attorney in court and new counsel will need to be retained. This promotes settlement by ensuring that all parties and their attorneys are focused on settling the case rather than focusing on preparing for court.
Collaborative Divorce includes a team of professionals to help the process be a success. The team includes a coach, to help the couple stay focused on the process and find effective ways to deal with the high emotions that can often hinder progress. In addition, the team includes a financial neutral who reviews the couple’s financial details and anticipates the implications of the various options that are proposed. If appropriate, a child specialist may be added to the team to help the parents minimize the negative impact on the children.
Collaborative Divorce is an excellent option if:
- you and your spouse are not in agreement about property and asset division
- you want to avoid the severe emotional scars of divorce
- you want to make the needs of the children paramount
- either you or your spouse feels disadvantaged in their knowledge about the finances or in negotiating
- you are willing to cooperative and share information openly.
Collaborative Divorce is less expensive than litigation.
This is the most commonly known and oldest way to go about dissolving a marriage or resolving custody and support issues. In the traditional litigation model both parties are represented by an attorney. The attorneys handle all negotiations and those negotiations are usually conducted with the threat of a court hearing in the background. If an agreement cannot be reached, the matter is taken to court for the judge to decide.
The advantage of litigation is that it is the only process that can guarantee that there will be a resolution. Other processes may not result in an agreement and going to court may become necessary – because in the end the Court will always set a date for a trial and will eventually make a decision if you and your spouse can’t make a decision for yourself.
There are many disadvantages to litigation. Even for those cases that end in a settlement, the context of the negotiations is typically the threat of going to court. This in contrast to a context that assumes there is a resolution that will meet both parties needs if we are willing to search for that “sweet spot.” Although most cases in litigation settle before going to court, rarely do the settlement negotiations leave clients feeling satisfied.
The task in litigation is to find the “truth.” Which assumes there is a truth. This search for the “truth” is bound in rules designed to achieve justice. Unfortunately those rules are often not fully understood. Clearly most clients don’t understand the rules. Unfortunately the rules are often not fully understood by the attorneys and the court. This lack of a common understanding of the rules results in a sense that the process was somehow unjust and the results did not find the “truth.” When a trial is over and the Court has rendered a decision I have rarely experienced either client experiencing “vindication” or a sense that the Court recognized and established the “truth.”
Litigation rewards attorneys for conflict, inefficiency, and irresponsible behavior. Although it is likely that the majority of family law attorneys aspire to be ethical and responsible, what is true is that people generally respond to rewards. The litigation system is full of conflict, inefficiency, and irresponsible behavior because that is what is rewarded.
Litigation should always be avoided.
Do It Yourself Divorce
If your situation if fairly simple and you are confident that you have a complete understanding of your assets, debts, income and expenses, and you are both in agreement with how your property and debts should be divided, you may be a candidate for a do-it-yourself divorce. if you and your spouse are both comfortable with the arrangements regarding child custody and support and shared parenting it is also an option to do-it-yourself. There are resources online to assist you with an uncontested divorce and there are forms required by the state designed to assist you in doing it yourself. Utilizing the services of a paralegal is also an option. However, there are several problems with doing it yourself that you should be aware of.
One problem with the do-it-yourself divorce is that sometimes you don’t know what you don’t know. What are the implications of a vague and loosely defined custody arrangement? Sometimes a loose agreement is beneficial and at other times is creates problems. An experienced mediator can help you decide what is right for your family. Are there hidden tax implications behind the property division you are contemplating? Are there assets that you haven’t considered that should be divided in your agreement? How do we determine what the right support number should be? Are there options you haven’t considered when you discover that you aren’t in agreement on the options you know about?
Another problem you should consider with a do-it-yourself divorce is the danger of making the conflict worse. An experienced mediator can help smooth out the communication and avoid doing greater damage to the relationship as you work through difficult issues. What you don’t want is to attempt to do-it-yourself, be unsuccessful, and then find that the relationship has been so damaged by the attempt that one of you goes straight to litigation when mediation or collaborative practice may have been successful in avoiding court.
A do-it-yourself divorce has advantages and disadvantages. Sometimes the cost savings is not worth the risk.