What is Divorce?
A divorce is a legal process to end a marriage. The division of property, maintenance (financial support for a spouse), custody/placement of children, child support and other related issues are covered by the Divorce Judgment.
How do these issues get decided?
There are a number of procedural models or methods that may be used. The difference lies in the amount of attorney and court involvement, conflict and cost. Each issue, for example, child support, may be resolved by the couple reaching an agreement, (then approved by the court), or by having a hearing to contest the issue where a judge will make a decision for the couple.
A few years ago, options that focused on minimizing conflict and emphasizing mutual problem solving were not available to divorcing couples. Today, however, a couple can choose the process that is best suited to their situation, including mediation and collaborative practice. These options are less adversarial than traditional litigation.
Choices for the divorce process:
- traditional negotiation/litigation
- pro se divorce
Litigation / Traditional law
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 his client. Rather than communicating directly with each other, the divorcing couple communicates mainly through their attorneys.
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 or subpoenas. A deposition is the testimony taken from a party before a court reporter. A subpoena is a court order for witnesses, documents, or materials that are believed to be relevant to the issues, to be presented to the court. During the litigation process each party may hire experts to support his/her position. These experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants and others.
Most divorces that employ litigation are eventually settled, but substantial time, money and emotion will be spent. Unfortunately, in the future many parties find they are dissatisfied with the outcome which means they may have to revisit the court to change the Divorce Judgment or to resolve disputes.
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.
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 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 most significant aspect of Collaborative Practice is that the negotiation always includes the parties, which is often not the case in the litigation setting. Discussion of issues takes place during meetings where, at the very least, the parties and their attorneys are present. Often, divorce coaches, financial neutrals and other collaborative professionals also participate. This approach ensures that the parties are directly involved in the process and retain control over their outcome. This is the truly unique benefit of Collaborative Practice.
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.
For more information on the collaborative law process please see www.collaborativepractice.com
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. Some mediators require, or the parties may decide on their own to retain "consulting attorneys." In these cases, the attorney's role may be limited to reviewing proposed settlement agreements and advising his/her client with regard to what the law is and how the proposed agreement may impact the client's legal rights.
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.