One of Five Posts
Number One: Choose the right divorce process for your specific circumstances.
First things first. Most spouses go to a divorce attorney initially. When I am interviewed by a prospective client, I always ask: " do you know all your divorce options regarding process?" I am always surprised to find out that many clients do not know the difference between a collaborative divorce, a traditional divorce or that divorce mediation is an option.
Some clients have never even heard about divorce mediation. If you are making the incorrect decision regarding process from the beginning, the financial (and emotional) impact to you and your family can be devastating.
- Are your major settlement issues legal, financial or both?
- Should you first meet with a divorce financial planner to obtain a financial overview of your situation and future costs?
- Should you go to a child-centered therapist to help you plan a solid parenting plan?
- Or can a divorce mediator who does parenting plans every day is sufficient because you do not have a high custody battle on your hand.
You should always consult with an attorney for a "rights and responsibilities" discussion, custody issues or best- and worst-case scenarios in case of a divorce trial or for educational and legal information. However, before formally retaining a Divorce Attorney, you should consider all of your options at the beginning.
Simply put, would you consider an amputation for a broken finger? Hopefully, the answer is "no." The correct answer should be based on a full evaluation of how broken this finger is of yours, in how many places or, is this going to be a relatively amicable, friendly, constructive "fix." Here is a summary of all the divorce process options available to you in Connecticut:
Divorcing Pro Se
Pro se means "for oneself" in Latin. Spouses proceed, by themselves, without counsel, using court forms or internet forms to file the necessary paperwork. Usually motivated by lack of funds to hire attorneys, it can work adequately for very simple cases - short marriages, where there are no (or few) assets and no children. In more involved or complex cases, it may be quite dangerous for the spouses to file for a divorce without an attorney. Things can be missed - and drastically so. Power imbalances and unfairness can run rampant. Doing your own divorce may be unwise.
A neutral mediator helps the spouses agree on all the issues stemming from the divorce. The divorce mediator should be well-versed in divorce and family law. Mediators cannot advocate for either spouse. However, a good mediator provides legal information to the spouses and creates various options. The divorce mediator helps the couple with the divorce process from the initial filing of legal documents to the final court hearing and with any post-divorce modifications.
Pros: You and your spouse remain in control of your divorce and separation. You and your spouse co-write your divorce agreement. Least expensive way to divorce and the most common form of alternative dispute resolution.
Cons: Not all couples can communicate, even with a mediator. May not work if financial, emotional or psychological abuse exists. An experienced, trained divorce mediator can ascertain if your divorce or separation is suitable for mediation or not. CO-MEDIATION is another option. A gender-neutral team, (female and male mediator) assists the couple together.
Collaborative Divorce Process
An excellent process to get a divorce, Collaborative Law is especially good for complex cases in medium- to long-term marriages. The parties meet face-to-face in a series of meetings with their own collaboratively-trained attorneys. The collaborative attorney is a family and divorce specialist, has mediation training, collaboration training and must be accepted by his peers in a collaborative group.
The attorneys advocate for their own clients but remain open to the views and interests of the other spouse. Sometimes a neutral facilitator, communication or child coach attends the meetings, only if needed to ensure that emotions don't disrupt the process. The parties and their counsel sign an agreement that says they will not litigate (with these lawyers). This keeps the threat of litigation out of the process. The parties usually can resolve their case expeditiously and cost-effective.
Pros: You and your spouse remain in control. No trips to court, all negotiations are private and occur in your attorney's offices. You have the added protection and legal advice at the table which provides ongoing advice, negotiation, counseling, and protection. More expensive than mediation, however, far less than litigated cases.
Cons: May not work if financial, emotional or psychological abuse exists. However, you can use neutral financial or communication coaches in session to mediate such issues. If you do not reach an agreement, you will have to hire experts to proceed to Litigation and Trial. However, those instances are not common as most cases settle without litigation.
For more information, you can visit the International Academy of Collaborative Professional: http://www.collaborativepractice.com.
Litigation Ending with Settlement
Litigation occurs when there is a filing, many subsequent court hearings, and decisions are made by the Court. There is formal discovery (depositions, production of documents, interrogatories). The process is expensive. There is generally some negotiation by the parties through their attorneys. Sometimes the case is resolved at the "pretrial conference" date if a separation agreement is signed at that time. If the case proceeds to trial, much additional legal expense results, but a high proportion of those cases end by settlement on the first day of trial.
This is a very expensive way to get a divorce. Ask an attorney to give you a ballpark figure. Unless you have lots of money to spend on this, try to use one of the methods previously described. Litigation ruins the relationship between you and your spouse forever (because you have gone "to war") and may affect your children detrimentally in their lives and their marriages. Think carefully before deciding to litigate.
Pros: If your spouse if unfit or harmful to you or your child(ren) your attorney will go to bat for you.
Cons: You are in for an ugly battle. The results are never guaranteed. Highly likely that ill will result. This will make it hard or impossible to parent or co-parent post-trial or post-litigation.
Winning is a matter of degree. Some say that no one wins with divorce litigation. Twelve months and $60,000 (at least) later, you'll have fewer assets than at the beginning of the process and an agreement similar to the offer that made months prior.
The emotional impact will go on for years. This step, however, may be the only one that you can take if your spouse will not communicate, will not share financial documents, is capable of or has committed physical abuse, has hidden assets or has dissipated marital assets.
Litigation Ending with a Trial
This is the worst of all possible worlds. It is like litigation, however with no settlement at the end. There is a trial, and the judge decides all the issues of the divorce. An actual trial adds a huge expense on the divorce bill and creates a lifetime of bad memories. The parties are not in control over their own destiny but have put the decision in the hands of a judge, whose decision may be unreasonable (however, not usually the case).
The judge may also take the middle road leaving neither party satisfied (often the case). Or the result can be "all or nothing" in favor of one spouse, which will leave one party happy and the other party devastated.
Pros: If your spouse if unfit or harmful to you or your child(ren) this may be your only option. Your attorney will go to bat for you.
Cons: Winning is a matter of degree. Some say that no one wins with divorce litigation. Very costly, so much so that in some situations it can be financially ruinous.
My recommendation is to evaluate each of these processes. Discuss the process options with your spouse. You can always start with the lowest-cost step first and move into the other processes depending upon your progress, level of conflict, collaboration or the needs of your situation. Some of my clients think "mediation" to save much needed financial resources. However, if your spouse is not cooperating, stalls fail to supply relevant information, threatens litigation unless he/she gets "their way," it may be time to "cut your losses" and move forward to collaborative divorce or litigation.
If you want additional divorce advice, please contact us and we can help.