By Karen Covy
Getting divorced isn’t what it used to be. “Back in the day” (i.e. 20 or 30 years ago) there was only one way to get divorced. You hired a lawyer, had your spouse served with divorce papers, then fought in court. Eventually, you either settled your divorce out of sheer exhaustion, or went all the way to trial and lived with whatever the judge ordered you to do. Today, mediation and collaborative divorce have changed all that.
Divorce mediation is a way to resolve your divorce issues with your spouse outside of the court system. In mediation a specially trained, independent mediator helps you and your spouse work out your divorce on your own.
The divorce mediator is a neutral party. Typically, the mediator is either a lawyer or a therapist. However, the mediator doesn’t represent either you or your spouse. The mediator also won’t act as a therapist for either of you. What the mediator does is to try to facilitate a productive conversation between you and your spouse. S/he helps you brainstorm creative ways to settle your issues.
Once you and your spouse reach an agreement, the mediator will write up the terms of that agreement for you. Those terms can then become incorporated into your divorce papers, and can form the basis for your final divorce agreement.
Collaborative divorce is another form of alternative dispute resolution. Like mediation, collaborative divorce takes place during a series of meetings outside of court. You and your spouse each retain specially trained collaborative divorce lawyers who work with you to settle your case. A neutral divorce financial specialist will help you work through whatever financial issues you may have. You may also use divorce coaches and/or a child specialist to help you manage your emotions and create a workable parenting plan.
Collaborative divorce uses a team approach to help you through your divorce. It is by far, the most supportive way to get through a divorce. However, if either you or your spouse decides to abandon the collaborative process and go to court in your divorce, then all of the collaborative professionals must withdraw from your case. You and your spouse much then start over with new lawyers and different divorce professionals.
While requiring you and your spouse to hire new lawyers may seem like a crazy thing to do, it actually keeps everyone working together towards the same goal: to help you and your spouse divorce amicably. When you know that you will have to start over again if you go to court, fighting becomes less appealing. When your lawyers and divorce professionals know that if they stir the pot, and encourage you to fight, they will lose your business, they are also more likely to help you work things out yourselves.
Divorce litigation is the way most people traditionally got divorced. In divorce litigation you and your spouse each hire divorce lawyers (or not). One of you files in court. Then you go through the court system until ultimately your case is tried or settled.
Divorce litigation is the most public way to get divorced. Everything you do happens in a public court room. Every document you or your spouse files becomes part of the public record. With more and more court systems putting their case files online, that essentially means that your divorce will be public forever.
Divorce litigation is also the most contentious way to go through a divorce. Unlike in collaborative divorce, you don’t have a divorce coach to help you handle your emotions or communicate reasonably with your spouse. Unlike in mediation, there is no neutral third party who is working with you to settle your case. Your attorneys are usually more concerned with protecting your rights than they are with protecting your future parenting relationship with your spouse. Besides, your attorneys are paid by the hour. The more you fight, the more money they make.
Which Divorce Process is Best for You?
Not every divorce process is right for every divorcing couple.
Mediation and collaborative divorce will usually lead you toward a much more amicable divorce. They give you more control over your divorce, and more privacy. They help you craft settlement agreements and parenting plans that are more flexible, and are tailored to meet the specific needs of your family. They also tend to cost less than a full on court battle.
Because you and your spouse will be more actively involved in your divorce process if you use mediation or collaborative divorce, the agreements you make in those divorce processes tend to be more solid. They last longer. You and your spouse are both less likely to challenge those agreements in court in the future.
But, mediation and collaborative divorce are also not appropriate options for everyone.
Both mediation and collaborative divorce are voluntary processes. That means that if you and your spouse both don’t agree to use them, they won’t work. (In many places, mediation is now mandatory. But, while a judge can order you to go to mediation, s/he can’t force you to settle your case there. So, effectively, if you and your spouse both don’t want to mediate your case, chances are, mediation won’t work well for you.)
Another requirement that both mediation and collaborative divorce have is that they require you and your spouse to voluntarily produce all of your financial information to each other, and to your lawyers. If someone is trying to hide assets, or withhold information, then neither of these alternative divorce processes will work well for you.
The only way to force your spouse to come clean with financial information is to have a judge order your spouse to do so. The only way to figure out if your spouse is hiding assets is to conduct a forensic evaluation of your finances. While, in theory, you could have someone perform that kind of forensic evaluation inside or outside of court, as a practical matter, if your spouse is actively trying to cheat you, s/he is not likely to participate in any divorce process in good faith. You’re going to need a judge to keep your spouse honest. (Or, at least, you will need a judge to order your spouse to produce the information that you can use to find out s/he is being dishonest!)
How Do You Decide?
Choosing the right divorce process is one of the single most important divorce decisions you are going to have to make. Unfortunately, your decision is often not easy or clear. There are pros and cons to every divorce process. Plus, getting solid information is often tough.
The most important thing you can do when you are thinking about divorce is to educate yourself. Take the time to research the various divorce processes. Talk to lawyers who litigate, and those who do collaborative divorce. Talk to mediators. If you can, talk to your spouse. Get as much information as possible before you decide which type of divorce process to use.
Doing this may seem tedious and time consuming. But it just may help you from making your divorce way worse than it needs to be.