No two marriages are the same, and so it only follows that no two divorces will be the same, either. In fact, if you’re contemplating divorce, you have several options about how to proceed. In general terms, you need to consider four broad categories of divorce alternatives:
- Do-It-Yourself (DIY)
- Collaborative or;
Let’s take a somewhat closer look at what is available so you can decide which one is right for you. There’s a lot more to these divorce options and how they work, but here’s an overview for each.
In my opinion, the best advice I can give you about Do-It-Yourself Divorce, is not to try to Do-It-Yourself.
Divorce is very complicated, both legally and financially. You can easily make mistakes, and often those mistakes are irreversible. The only scenario I can envision when a Do-It-Yourself divorce may make any possible sense, might be in a case where the marriage lasted only two or three years and there are no children, little or no assets/debts to be divided, comparable incomes and no spousal maintenance/alimony. In a case like that, a Do-It-Yourself divorce could be accomplished quite quickly and inexpensively. Nevertheless, I would still highly recommend that each party have their own separate attorney to review the final documents.
Mediation is a cooperative divorce method whereby a neutral third-party (the Mediator) helps and guides a couple through resolving the issues and financial matters of divorce. In divorce mediation, a divorcing couple works with a neutral mediator who helps both parties come to an agreement on all aspects of their divorce. A mediator brings options to the table and helps to create a mutually acceptable agreement that is customized to the unique needs of the situation and the unique needs of children (if any) pertaining to the parenting plan and timesharing, child support, alimony (spousal support/maintenance/spousal maintenance), division of marital property and debts and other important issues. The mediator also drafts much of the required paperwork including a Memorandum of Understanding which outlines the tenets of the agreement.
The mediator may or may not be a lawyer (there is no requirement for that to be the case), but he/she must be extremely well-versed in divorce and family law. In addition, it is critical for the mediator to be neutral and not advocate for either party. While not necessary or required, I suggest both parties consult with their own, individual attorneys during the mediation and prior to signing the final divorce settlement agreement.
Simply put, collaborative divorce occurs when a couple agrees to work out a divorce settlement without going to court. Collaborative divorce (also known as the collaborative law process) is somewhat of a hybrid between a “traditional” litigated divorce using attorneys and divorce mediation.
During a collaborative divorce each party hires an attorney who has been trained in the collaborative divorce process to represent them. The role of the attorneys in a collaborative divorce is quite different from a litigated divorce. Each attorney advises and assists their client in negotiating a settlement agreement. The parties meet with their attorneys separately and then they all meet together (commonly referred to as a “4 way.”) The collaborative process may also involve other neutral professionals such as a divorce financial planner who will help both of the parties work through the financial issues and a coach or therapist who can help guide both of the parties through child custody and other emotionally charged issues.
In the collaborative process, both parties and their respective collaborative family law attorneys sign a contract that states they are committed to using cooperative techniques instead of combative tactics to negotiate the various divorce issues. The contract is called a “participation agreement.” If an agreement cannot successfully be reached on the relevant divorce issues using the collaborative process, the two divorce attorneys (and the financial professional) will be disqualified from further representing the parties (spouses). The couple (parties) will then need to continue on through family law court proceedings (divorce litigation), and will need to start over with new/different attorneys.
Even if the collaborative process is successful, the parties sometimes have to appear in family court so a judge can sign the agreement. But the legal process can be much quicker and less expensive than traditional litigation if the collaborative process works.
The fourth divorce option is the most common. These days, the majority of divorcing couples choose the “traditional” model of litigated divorce. However, “litigated” does not mean the divorce ends up in court. In fact, the vast majority of all divorce cases (more than 95 percent) reach an out-of-court settlement agreement.
Why litigation? Because divorce usually does not involve two people mutually agreeing to end their marriage. In 80 percent of cases, the decision to divorce is one-sided – one party wants the divorce and the other does not. That, by its very nature, creates an adversarial situation right from the start and often disqualifies mediation and collaborative divorce, since both methods rely on the full cooperation of both parties and the voluntary disclosure of all financial information. Litigation is the proper route if you suspect that the other party is hiding assets, if the other party is domineering, if there is a threat of domestic violence (physical and/or mental) towards you and/or your children, or if there is a problem with drug and/or alcohol addiction. Also, the most important and most difficult parts of any divorce are coming to an agreement on child custody, division of assets and liabilities and alimony payments (how much and for how long). An overly contentious approach will not only prolong the pain and substantially increase your legal fees, it will also be emotionally detrimental to everyone involved, especially the children. Don’t forget, once you’re in court, it’s a judge who knows very little about you and your family that will make the final decisions about your children, your property, your money and how you live your life. That’s a very big risk for both parties to take –and that’s also why the threat of going to court is usually such a good deterrent.
Weigh divorce options carefully. The bottom line is that every family, and every divorce, is different. Obviously, if you are able to work with your spouse to make decisions and both of you are honest and reasonable, then mediation or the collaborative method may be best. But, if you have doubts, it is good to be ready with another alternative which would be a litigated divorce.
Tracy Badgley, CPA, CDFA, CGMA