Choosing A Divorce Process
Most people do not understand that they control
their divorce process. They alone can choose how they will resolve their
issues. In that context, there are hundreds of conflict resolution procedures
or combinations of those procedures. In some cultures that may include
community intervention and mediation. Not all divorces must spend a lengthy
amount of time in the court system.
Obviously, the Cost of a divorce proceeding may
depend on the process you choose. The more that you can accomplish on your own
with your spouse, the lower the costs related to legal fees and other
proceedings. Although the ways to resolve divorce issues are diverse and
varied, I like to set out the more common divorce processes in levels, with the
lowest level potentially being the least expensive and least contested.
However, none of these levels operates in a vacuum, you may be mediating while
your divorce progresses through court for example.
LEVEL ONE: DISCUSS
To reduce legal expenses it may be possible to
discuss the divorce issues with your spouse. Even if you cannot agree on all
issues, you may resolve some. For example, property issues are generally easier
issues to address. Any asset that is acquired during the marriage is marital.
Any asset that is owned before marriage, inherited or gifted to one party may be
non-marital. If you and your spouse can meet to define what assets you have,
that is 25% of the battle. If you can then agree on what assets are marital or
non-marital, you are half way there. If you can then agree on the value of the
assets, you are 75% of the way toward resolving your property issues. The final
step is determining the division, who gets what. In a divorce, your attorneys
will go through these very same steps in a process called discovery. If you can
make some progress before hiring a lawyer, you may save some costs. Obviously,
the parenting issues and support issues are a bit more emotional and often
LEVEL TWO: MEDIATION.
If you are unable to speak with your spouse one on
one because of acrimony and anger, or if your spouse has a much stronger
personality than you, you may wish to try a mediator. A mediator is an
independent neutral. The mediator does not give legal advice, but will try to
keep the settlement negotiations controlled and civil and may even suggest
documents that you may acquire or steps you may take to resolve your issues.
LEVEL THREE: COLLABORATIVE
Collaborative Law is a new way to resolve disputes
by removing the disputed matter from the litigious court room setting and
treating the process as a way to "trouble shoot and problem solve" rather than
to fight and win. It does not exist in any laws or drafted Court procedures. In
fact, it was a creation of attorneys who believed that the Court system creates
adversaries and promotes fighting. As part of the Collaborative Law method, both
parties retain separate attorneys whose job it is to help them settle the
dispute. The process is carried out with a series of meetings with all parties
present. Documents and information are freely exchanged without the formalities
associated with the Court process. This generally saves money. Where the Court
system would most likely not have the parties meet to discuss their issues for
many months, if at all, Collaborative Law expedites the process with a meeting
at the very beginning. This gets the matter off to a flying start without having
to wait based on Court schedules. In fact, part of the Collaborative Law
agreement is that neither party may go to court. If that should occur, the
Collaborative Law process terminates and both attorneys are disqualified from
any further involvement in the case.
LEVEL FOUR: COURT
A divorce action may be commenced by serving the
other party with and filing a Summons and Petition. These documents notify the
court of the divorce and start the court time lines. Each state and county has a
slightly different process. In most counties where the parties disagree on
custody or parenting schedules, the Court requires mediation (except in cases
where domestic abuse has occurred). Additionally, if children are involved,
both parents must often attend a co-parenting class and often children over the
age of 5 must attend a class on how to deal with parents involved in a divorce.
As a general rule, Court time lines are very slow. A party may schedule a
temporary hearing to determine what happens until the divorce is final. On a
temporary basis the court will determine who resides in the house, who pays what
bills, who has temporary custody, child support and maintenance issues. In most
counties, if the parties do not resolve their issues and the matter proceeds to
trial, that trial date will not occur for a year or more.