Everyone knows that there are many ways to get married: Big church wedding with all the trimmings, a blow out beach bash, a quick ceremony in front of a courthouse judge, or even vows exchanged while skydiving. It’s your day, you get to pick how to take the plunge (or the skydive, if that’s your bag).
What many people don’t know is that there are just as many ways to divorce as there are to marry. Mediation, arbitration, litigation, and a whole host of other methods that don’t have the literary upside of rhyming but are just as effective – there is even a divorce hotel…walk in married, walk out divorced!
Marriage, whether beginning or ending, is not a one-size-fits-all proposition.
Choosing the process you use to get divorced is just as important as choosing your divorce attorney. This post highlights the most common ways to untie the knot, as well as some options you may not have considered that could be a great fit for your unique circumstances.
Believe it or not, some couples are able to work out their divorce settlements all on their own by sitting around the kitchen table and working out an agreement. While this method can keep costs and drama down, it’s essential that both parties are fully aware of and involved with the family finances, that neither feels pressure to come to an agreement without legal guidance and are at a place where the emotional waters are calm. For couples who can equitably and calmly manage hashing out the details on their own, this can be a great way to go. As with any type of divorce, no matter the method, I always, always, recommend having a qualified family law attorney review any settlement that you and your spouse agree upon before you sign it.
Mediation is a process where you and your spouse (and possibly your attorneys) meet with a mediator to settle your divorce. Mediators are highly trained individuals, usually attorneys and retired judges, who can guide the conversation to help you and your spouse reach a resolution. The key is that in mediation, while the conversation is guided, you and your spouse call the shots as to what goes into the agreement. Many couples may be tempted to go to a mediator without an attorney…hey, it is cheaper, right!…however, keep in mind that a mediator is not allowed to give you or your spouse legal advice. Their sole function is to help facilitate communication that moves you and your spouse towards a settlement without going down the path of litigation. They cannot advise you as to the benefits, drawbacks, or financial consequences of entering into any agreement you and your spouse may reach during meditation. In many jurisdictions, you may bring an attorney with you to mediation for instant feedback, review, and guidance in your decision-making. In all jurisdictions, you are able to bring a proposed agreement to an attorney of your choice to review before you sign it. Do not feel pressured to sign any agreement or term sheet before you have an attorney review it; it is your right, and in your long-term best interest to know that you are entering an agreement with a full understanding of how it will impact your—- and your children’s, if applicable—- future well-being.
Negotiation between attorneys is an excellent process option that gives you the protection of legal guidance without the acrimony that comes with going to trial. In negotiation, you and your spouse each hire attorneys and, after an exchange of documents related to finances, assets, and custody, the attorneys negotiate directly with one another to reach a settlement. Your attorney will be working towards a settlement based on the unique goals you direct them to address. As a result, you stay out of the weeds going head to head with your ex, knowing that your attorney has your back. Attorneys can often speak to each other in short-hand to get right to the heart of the matter, staying out of the drama and the trauma that prompted your split. If you and your spouse cannot speak positively to one another, negotiation between attorneys is an excellent option.
Some states allow parties to enter “arbitration”—- a fancy legal term that simply means delegating the decision-making authority to a person agreed to by you and your spouse—- or to hire a private judge to hear their case. When family cases are in Court, they are almost always part of the public record. If you have notoriety in your community or if you otherwise want privacy (hello, celebrities!), you have the option of arbitration or hiring a private judge. Note: This option can be expensive. You and your spouse engage the services of an arbitrator or private judge and agree to pay that judge, hourly, to hear your case, review the evidence you present, and render an opinion. Arbitration can be binding, meaning you have to stick with what the arbitrator says in their opinion, or non-binding, meaning you can decide to scrap their opinion and take your case to court. Most jurisdictions are binding, but for the few that aren’t, scrapping the judge’s opinion and going forward with a trial is big big bucks. You’ve burned through a lot of cash without reaching a deal the first time, and then face shelling out even more for a trial.
Collaborative divorce (also known as a collaborative law) is a process where you and your soon-to-be-ex agree up front to work together to reach a settlement. Each party hires an attorney or divorce coach who is collaboratively trained—- sites like the International Academy of Collaborative Professionals can help you find an attorney or divorce coach who’s qualified. You may also work with divorce coaches, financial neutrals, child experts, and other collaboratively trained professionals who will be a part of the team. Each member of the team will sign a collaborative participation agreement which varies slightly, state-to-state. Generally, the big points in common are:
Collaborative law is an excellent option, but does have some drawbacks. If you have information you don’t want your spouse to know (perhaps you had an extramarital relationship or you are the future beneficiary of a very large trust fund), then a collaborative divorce is not for you. Additionally, there are no deadlines in a Collaborative Divorce, so if you have a reluctant soon-to-be-ex spouse, they can use this method to drag out your divorce for years, costing you money and sanity in the process.
This is the traditional method that we all see on TV. He has a lawyer, she has a lawyer, they duke it out before a judge….or do they? In my experience, the vast majority of family law cases that are in litigation settle before the parties ever see a courtroom. Litigation is a scary word with big drama connotations. In reality, however, litigation is just a structured process, guided by court proceedings and deadlines, for parties to settle their divorces. There are rules governing every aspect of the process: Discovery (another lawyer-y word that just means the process of gathering information like financial records), settlement hearings, and other time-markers to move your forward towards your New Normal. Typically, your attorney is engaging in lawyer-to-lawyer negotiation at the same time that the litigation timeline is moving along. You may even to go mediation while your court date is pending, by choice or by court order, as dictated by many jurisdictions across the U.S. At the end of the day, even if your case goes all the way to trial, you will walk away with a divorce judgement in a pre-determined timeframe, usually about a year.
More and more options are popping up for people who wish to handle their own divorce. Great resources like Hello Divorce, Lets Untie The Knot, Its Over Easy, and Legal Zoom provide DIY resources for parties to have a helping hand figuring out their divorce, including all the forms that go along with filing. Many courthouses also have staff attorneys or paralegals available to provide advice to self-represented (or pro se) litigants. This option can save you money and frustration… provided, of course, that your matter is fairly straightforward. If you’ve got extra-complicated custody matters or super intertwined finances— like a business you and your spouse co-own—- this is not the route for you. If you’re dealing with simple division of property and relatively peaceable custody arrangements, DIY can be your BFF.
Like choosing the type of wedding you will have, choosing any type of divorce outside of litigation requires the consent of both parties. No matter the method, we’d like to add the important caveat that choosing the path that works for your situation is a decision best made with some input from a qualified divorce attorney. Invest in an initial consultation—— some lawyers are willing to do these for free—— to explore the pros and cons of any particular approach for your family’s unique circumstances. Hopefully, you and your soon-to-be-ex can agree on a process to help you move your family forward, even as you head in different directions in life and love.
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