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More Than One Way to Divorce

Know your options before you are left with just one

by Emma L. Whitley

If you had to re-create the wheel and set up a system for divorcing parties–dividing up their property and debts, and developing a time-sharing arrangement for their children–would your first thought be to send the parties to a person neither party has ever met and authorize that person to make all of the decisions on how to divide their things and split time with their children? Would you set this process in a formal, court room setting which will require numerous hearings and a possible trial to get everything settled? Sounds a little crazy right?

The process is just what a traditional, or litigated divorce, does. In a traditional/litigated divorce, while the parties are encouraged to work together to reach resolution, if a universal agreement cannot be made and ultimately the parties cannot agree, it is up to the judge to decide. The judge is tasked to sticking to the letter of law, with emotional issues and hurt feelings aside.

If the litigated divorce does not sound right for you, there are other options.

  1. Mediated/Facilitated divorce: Want to keep the process out of Court but unable to come to a complete agreement with your spouse? Mediated or facilitated divorce may be right for you. In a mediated/facilitated divorce the parties represent themselves and an attorney is hired to serve as a mediator /facilitator to give the parties guidance on the law and to help give a feel for what would be the consequences of going to Court and how the Judge may ultimately rule. If the parties are able to reach a complete agreement as part of the mediation/facilitation process, the attorney mediator/facilitator can then prepare the divorce paperwork, which can then be filed with the Court and approved by the Judge without either party having to go to Court.
  2. Uncontested divorce: If you and your spouse have been able to come to a complete agreement regarding division of property and time-sharing with the children, but feel uncomfortable reducing the terms to legally acceptable documents to be filed with the Court, an uncontested divorce may be your best option. In an uncontested divorce an attorney is hired to represent one party and the other party represents him or herself. The attorney will give guidance to the client on the law and how that Court might rule on certain issues and will address numerous issues the client may not think to address—tax consequences of property exchanges, federal law requirements regarding division of retirement accounts, etc. Ultimately, however, it is up to the client to reach the agreement with his or her spouse. Once a complete agreement has been made, the attorney will prepare the divorce packet memorializing the agreements made between the parties and file all documents with the Court. No appearance before a Judge is required.
  3. Collaborative divorce: While the mediated/facilitated and uncontested divorce offer different and distinct benefits from a traditional/litigated divorce, both of the processes are law focused, without a concentration on processing and moving through the emotional toll that a divorce can cause. Collaborative divorce offers a more needs based assessment, in which the emotional component is addressed and the parties are encouraged to get creative in reaching a final agreement. The process is aimed at not only divorcing the parties and allowing them to move on, but the healing process often required to do so, for all parties involved, including the children.

In order to adequately address the parties’ financial and emotional needs and goals, a collaborative team is drafted, always consisting of the clients and their attorneys. It should be noted that only collaboratively trained and certified attorneys can practice in the area of collaborative law. In order to properly address financial issues and focus on emotional healing for the parties and the children, other team member professional may be brought into the process including:

  • A neutral financial specialist to help the parties in gathering all necessary financial documentation and work with the parties and their lawyers to clearly identify and address the present and future financial implications of possible settlement options.
  • A neutral child specialist to help the parties develop a thoughtful parenting plan for the children as well as address concerns the children may be having. This mental health professional’s role is not to make decision for the parties but to help them identify current and long-term emotional issues associated with children and the divorce process.
  • Divorce coach(es) for each spouse. Usually this role is played by a mental health professional who is concentrated on helping the parties address current emotional concerns and develop the skills necessary to be able to communicate and work together in the future—especially where there are children involved.

The attorneys work together with the divorcing parties to identify just what team members will be essential to the collaborative process and which collaboratively trained professional in the community best suits the parties’ needs.

A true collaborative setting requires full transparency throughout the process and a commitment to keep the matter out of Court. If at any time one party decides to leave the collaborative process, both parties’ attorneys are disqualified for future representation. Collaborative law is aimed at addressing the whole person, the whole client, knowing that divorce is so much more than division of things.

Not all clients are right for the collaborative model, but knowing it as an option is important. Some people simply need “their day” in Court.

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