Litigation, Mediation, or Collaborative Divorce: Which is Right for You?

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

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

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

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.

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Comparing divorce processes can be confusing. If you want to get a free divorce process comparison chart go to https://karencovy.com and click the link on the right side of the home

 

 

 



After Your Divorce: You’re Not Done Until You Do These Things

Going through a divorce is like running a marathon with a load of bricks strapped to your back. By the time your divorce is final you are exhausted! You don’t want to talk to another attorney, or dig up one more stupid financial document, for a long, long time! But, even though the judge has pronounced you divorced, you’re not really done after your divorce until you’ve made sure that you and your spouse have separated everything.

What many people don’t realize is that, even though your divorce judgment says who gets what after your divorce, the judgment alone doesn’t automatically divide everything up. You have to do that yourself.

You have to separate your bank accounts and divide up your stuff. You have to cancel credit cards and do all the paperwork to change your name.  Your divorce judgment says what is supposed to happen, but you have to make it happen.

What Are You Supposed To Do?

Unless you’ve been through a divorce before, it’s not instantly obvious what you’re supposed to do after your divorce is done to make sure everything is separated properly.  The judge doesn’t give you a checklist along with your divorce judgment and tell you, “Make sure you do these things … now!” While your attorney may tell you a few of the things you’re supposed to do, most attorneys are not going to give you a post-divorce checklist either.

What makes things even more complicated is that there isn’t just one place you can go and take care of all of the picky details involved in separating your life from your ex’s life. You have to tromp around to multiple offices, visit multiple websites, and fill out mountains of forms in order to divide your finances, change your name, and do whatever else it takes to re-establish yourself as a separate entity.

To make things a little easier, here is a list of some of the most important things you are going to need to do after your divorce is done, to make sure you can move into your new life with confidence.

12 Things You Still Have to Do After Your Divorce is Final

  1. Go through your divorce judgment and put deadlines in your calendar for any important dates now! It’s way too easy to forget important deadlines once your divorce is over. If you are supposed to refinance your house, or get your stuff out of your spouse’s house, or do anything else after your divorce, put the date in your calendar now!
  2. Secure your own health insurance (or remove your spouse from your health insurance policy). There are very rigid deadlines for when you can obtain your own health insurance policy after divorce. Blowing the deadline could mean spending months without health insurance. If you have been on your spouse’s health insurance, make sure to make getting your own health insurance your top priority. If your spouse has been on your health insurance, make sure you notify your insurance carrier of your change in marital status, and get your spouse taken off your policy.
  3. Separate all of your bank and investment accounts. You need to separate your bank accounts the day you get divorced, or as soon afterwards as it is humanly possible for you to do! The longer you wait, the more the bank balance changes, and the more work you will have to figure out how much money you and your spouse is each supposed to get from the account. Of course, before you close an account, make sure you have re-directed any automatic debits or credits to or from that account!
  4. Close all joint credit cards and remove your spouse’s name as an authorized user from all of your credit cards. Closing all of your joint credit cards after your divorce is a no-brainer. But don’t forget to make sure that you also remove your spouse as an authorized user on all of your credit cards. The last thing you need is for your spouse to use one of your credit cards without your knowledge after your divorce! (You also want to make sure your ex removes you as an authorized user on his/her credit cards, too. That way your ex’s failure to pay a bill won’t affect your credit.)
  5. Make sure that any money that is supposed to be transferred from a retirement account actually gets transferred. Money from retirement accounts does not automatically get transferred simply because you got divorced. Someone has to actually make the transfer happen. Most times, you will need a special court order called a Qualified Domestic Relations Order (QDRO) to transfer money from one retirement account to another. Check with your attorney about getting this Order entered. Then make sure to keep following up until the transfer occurs.
  6. Refinance the mortgage on the marital home, and get a quitclaim deed to re-title your property. Even if your divorce judgment gives you time to refinance your home, it doesn’t hurt to check with a mortgage broker as soon as you can and find out what you need to do to qualify for a loan. If your spouse is supposed to sign a quit claim deed, make sure to have that drawn up as soon as possible. As long as your spouse’s name is still on the house, s/he is still technically a part owner of it, no matter what your divorce judgment says. You can refinance the mortgage on the marital home, and get a quit claim deed to re-title your property.
  7. Re-title your automobile(s) to be in separate names. Cars, trucks, boats, trailers and motorcycles all may need to be retitled. You can get the necessary forms from your local Department of Motor Vehicles or Secretary of State’s office. It’s a pain in the behind to do, but not something you want to put off.
  8. Change the beneficiary designations on your life insurance, 401(k)s, and any other financial instrument that has a designated beneficiary. Lots of people forget that they have named beneficiaries for certain financial instruments. When you die, your life insurance company or 401(k) plan will pay the benefits from the policy or the plan to the person who you named as the beneficiary – even if that person happens to now be your ex! If you don’t want your ex to get those benefits, do yourself a favor and change the beneficiary now, before you forget!
  9. Make a new Will and powers of attorney for property and healthcare. No one likes to think about what will happen when they get seriously ill or die. But, unless you want your ex to be in charge of deciding whether to pull the plug if you are in the hospital and unable to make your own medical decisions, you’d better change your powers of attorney now! You also want to revisit the terms of any Will you made before, and change them now to reflect what you want now that you’re divorced.
  10. Make sure you and your spouse are both listed as contacts with your kids’ schools and any activity they are enrolled in. Even if you and your ex get along well (and especially if you don’t!) having to make copies of every document you get from your kids’ school or activities for your ex is still a hassle. It’s way easier if you can arrange to have your child’s school and all of their activity providers send duplicate copies of everything to you and your ex. Then both you and your ex will know what’s going on. Neither one of you will feel burdened by having to make sure the other is kept in the loop.
  11. Set up a joint calendar with your spouse to keep track of their activities. It’s hard enough to keep track of what your kids are doing when everyone lives in the same household. Once you live separately, life gets even more challenging. Having a joint calendar that both you and your ex can access anytime will make managing your kids’ schedules way easier. If you and your ex get along, you can use a joint Google calendar. If not, there are a ton of parenting apps that will let you and your ex keep track of your kids activities and expenses.
  12. If you haven’t already done so, change all of your passwords. After your divorce, you want your private life to be private. To make sure that your digital life remains your own, change all of your passwords – and don’t use passwords you have ever used before! It doesn’t do you any good to change your passwords if your ex can guess the new one!

BONUS TIP: If you are changing your name, get a certified copy of your divorce judgment immediately! You will need it.  Also, remember to change your name everywhere! That includes on your driver’s license, your social security card, all of your credit cards, all of your bank and investment accounts, and everywhere else your name is listed. (Yes. It’s a process!)

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Karen Covy is a divorce adviser, attorney, mediator, coach and the author of When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. Karen’s divorce articles have been featured on The Huffington Post, Divorced Moms, Divorce Force, GUYVORCE, The Good Men Project, and Your Tango. If you want to know more about how you can get through your divorce without ruining your life, visit Karen at www.karencovy.com.