Divorce Options/M. Marcy Jones, Esq.

Posted on January 17, 2011

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What are My Choices?
Your choices range across a broad spectrum. The list moves from the least invasive choice, ensuring the most privacy and client control, to choices involving more professional intervention and less privacy and control. Because every separating/divorcing couple is different, every case is different. The professionals you choose to help you, and how you choose to use their help, will significantly affect whether your divorce proceeds smoothly or not.

Here are your choices:
The “kitchen table” agreement

The least intrusive way to resolve your issues is for you and your spouse to sit down and reach your own agreement. Some couples are able to resolve all their issues without any professional assistance at all, from writing up their own property settlement and custody and support agreements, to finalizing the divorce through the court system. Some are able to resolve their issues and simply need help with the paperwork.

This works best when

* You and your spouse have mutually agreed to separate and divorce and you already know what you want.
* You have a trusting relationship.
* You do not have complex financial or child related issues.
* You have a balance of power in your relationship and you do not need individual legal advice.

Mediation

In mediation, a neutral third party helps you and your spouse find common ground and come to an agreement on the issues to be decided in your situation. A mediator is a person trained to facilitate conversations and agreements. The mediator may be a lawyer, a mental health professional, or someone else trained in the process. The mediator simply helps the couple to reach agreement. He or she may not give legal advice. Most mediators will advise the couple to take any agreement reached between the parties to a lawyer for independent review. Sometimes the lawyers participate with their clients in the mediation process.

Mediation works best when:

* You and your spouse need help coming to an agreement but do not want to hire individual attorneys.
* You want to reach a mutual resolution based on what is best for you, your spouse, and your children.
* You and your spouse have balanced negotiation styles and one spouse doesn’t tend to overpower the other in the process.

Collaborative Law

Each person hires his or her own lawyer and/or a team of professionals (see Collaborative Team) who have been trained in the collaborative process. Collaborative lawyers are trained in the skills needed to combine resolving disputes with client advocacy and advising. The lawyers are an important part of the process and are integrally involved in helping the clients gather information and explore their options.

All negotiations take place in a series of four-way meetings. At the beginning of the process, both clients sign a contract agreeing that they will not go to court and to participate openly and honestly. Settlement is the only agenda. If the process breaks down and an agreement is not reached, both collaborative lawyers are disqualified from further representation and new lawyers must be retained.
During the negotiations, each client has built-in legal advice and advocacy. The lawyers’ job is to guide the clients to a resolution that is reasonable and acceptable to each. In this model, the clients usually reach resolution in less time, at less cost, and with less stress. By utilizing this process, the clients set themselves up for a much better relationship post divorce, which is critically important, especially when there are children involved.

Collaborative Law works best when:

* You and your spouse want the support and guidance of your own attorneys, to guide you through the process and to review documents.
* You don’t want to go to court.
* You want to maintain a respectful relationship with your spouse through the divorce process and after the divorce.
* You want to minimize time, costs, and stress involved in your divorce.

Going to Court / Litigation

This is when one or both parties go out and hire the best litigator they can find to make sure they get the best deal in the divorce. In this model, the parties see their divorce as either winning or losing. The parties here are typically driven by strong emotions of fear, anger or guilt. As a result, they tend to take extreme positions and look to the court system for justice and revenge.

This is the most expensive form of dispute resolution, both emotionally and financially. It’s destructive for the parties and especially for the children. These cases can go on for years, with little satisfaction achieved by either side. The adversarial process rarely settles the issues between the parties. And, let’s face it, it’s a lousy way to prepare for life after divorce. You won’t learn the skills you need to be able to communicate with your children’s other parent or to move past your conflict in order to concentrate on your children.

Although litigation is never recommended, there are times when it is simply unavoidable.

This would include:

* When there is a history of domestic violence in the relationship and there is an issue of safety for either you or your spouse or your children.
* There is a history of mental illness or personality disorder which would make it impossible to negotiate effectively.
* When one spouse takes action by filing court documents alleging a fault ground for divorce and setting hearing dates, the other spouse has no alternative but to engage in the legal battle (unless they can reach an agreement to stop the court action and begin another dispute resolution process like mediation or collaboration).

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