Guest post by Karen Covy, divorce lawyer, mediator, educator, and advisor. She’s also the author of “When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally”.
When you start thinking about divorce, the first question that pops into your head is probably not going to be: what divorce process should I use? Yet, there really is no question that is more important. The divorce process you choose dramatically affects your experience of divorce, and your life after divorce. Here is a summary of your divorce process options, and a few ideas about how to choose the process that will work best for you.
Divorce Process Choices
- Mediation – Mediation is a process in which an independent, neutral third party (a mediator) works with you and your spouse to help resolve your divorce issues yourselves. The mediator can not give you or your spouse legal advice. The mediator also can not force you to make an agreement. The mediator can facilitate a discussion between you and your spouse, as well as brainstorm options to settle your case that will result in a “win/win” situation wherever possible.
Mediation Works Best for: People who want to resolve their issues outside of court and decide as many issues as possible themselves. Mediation works best for people who are willing to voluntarily produce financial documents and want to work together to come to an amicable resolution of their case.
Mediation Does Not Work Well for: Couples with an extreme power imbalance, i.e. cases involving domestic violence or extreme emotional abuse. Mediation will not work if one spouse is purposely trying to hide information, or will not abide by the terms of the agreements s/he makes.
- Negotiation – Negotiation is known by many names, and can take many forms. You can negotiate directly with your spouse and reach an agreement that way. (“Kitchen Table” divorce.) You and your spouse can hire attorneys to negotiate for you. (This is usually in the context of a traditional divorce.) Or, you, your spouse, and your attorneys, can all sit down and negotiate together outside of court. (Co-operative divorce.) The key principles of negotiation are that you and your spouse are working toward resolving all of your issues without going to trial.
Negotiation Works Best for: Everyone who is reasonable and has a spouse who is reasonable. Ultimately, every case either involves some sort of negotiation, or it is decided by a judge. The question is not whether you should use negotiation, but whether you should use it together with mediation, litigation or collaborative law.
Negotiation Does Not Work Well for: Anyone who keeps changing his/her mind, or who can’t follow the rules. If someone is determined to get their “day in court,” negotiation is pointless. If someone refuses to honor any agreements they have made, litigation is usually the only way to deal with them.
- Collaborative Divorce – In collaborative law, you and your spouse each hire a collaboratively-trained lawyer, and together the four of you put together a team, including a divorce coach (or two), a neutral financial expert, and, if necessary, a child specialist. The team works together to help you resolve all of your issues before anything is filed in court. If, for any reason, the collaborative process fails, then all of the professionals withdraw and you and your spouse have to start over with different lawyers. This provides a huge financial dis-incentive for anyone to cause a fight or walk away.
Collaborative Divorce Works Well for: Couples with a lot of issues to resolve who want to stay out of court. If you have been in a long term marriage, have a complicated financial situation, own a family business, or have children with special needs, collaborative divorce could work really well for you.
Collaborative Divorce Does Not Work Well for: Couples where one party won’t be honest, or voluntarily provide complete financial information. If one spouse refuses to abide by the terms of the agreements s/he makes, or is determined to seek revenge, collaborative divorce is probably not going to be the best option.
- Litigation – Litigation is traditional divorce. It is going to court and fighting until you and your spouse either decide to settle your case, or you go to trial and a judge decides your life for you. It is expensive, nasty, and time-consuming. You can do it with or without lawyers, but going to court without a lawyer is never a good idea and generally does not work out well (particularly if your spouse has a lawyer and you don’t.)
Litigation Works Well for: Couples who can’t resolve their case any other way. If one spouse is determined to fight, wants revenge, or refuses to be reasonable, litigation is the only way you can resolve your issues. If your spouse refuses to do what s/he is supposed to do, or follow the rules, or disclose information, litigation will help you resolve your case.
Litigation Does Not Work Well for: Anyone who wants privacy, flexibility, or control of their case. If you want to have a decent relationship with your ex, or you want to be able to cooperatively co-parent after your divorce, going through litigation is not for you. Also, if you would prefer not to pay your life’s savings to lawyers, you should choose any way to resolve your case other than litigation.
- Online Divorce – The truth is: there is no such thing! Getting an “online” divorce really means getting your documents written by an online divorce site. Once you have your computer-generated documents, you then need to take them to court yourself, present them to the judge, and get divorced.
Online Document Production Works Well for: Anyone with a simple case, no property, no kids, and a short term marriage. While the quality of the documents you get may not be the best, if you don’t have anything together with your spouse, online documents may work just fine for you.
Online Document Production Does Not Work Well for: Anyone with a long-term marriage, kids, property, or anything worth fighting about. Also, if you are afraid to go to court alone, or you don’t have the time or energy to figure out how the court system works for yourself, getting your documents produced online and doing your divorce yourself may not be the best choice for you.