There is more than one path through the forest.
We’ll tackle the first misconception right away: you don’t have to handle the legal issues of your divorce in court. In fact, you can choose to resolve your issues outside of court through a range of options, including negotiation, mediation, Collaborative Divorce, arbitration, and if all else fails, litigation. At this stage in your uncoupling, one of the first decisions you’ll make may be the most important one: choosing your divorce process.
When it comes to divorce, knowing your options is crucial. Without that information, you cannot choose the process that is right for you and your family. And the process has a direct effect on the outcome. Below you’ll find a description of each process available, along with a brief analysis of the relative pros and cons.
Choosing your process
Maybe you’re dreading even thinking about figuring out your divorce answers. Or, maybe you’re understandably anxious to put this behind you and start your new life. Either way, you didn’t rush into this decision, so you should take some time to examine everything you hope to achieve as a result. Consider this a checklist to put you in the right frame of mind to make an informed choice.
Factors to consider when choosing your divorce process:
- Your ultimate end goal
- How actively you want to participate
- If applicable, the impact on your children
- Financial objectives
- Emotional and personal goals
- Ability to move on
- Future intimate relationships
- Willingness to continue “living in the fight”
- Emotional energy reserves
- Your values
- Whether you want to make decisions for yourself or have someone else make them for you
One destination, five viable paths
Negotiation can be as simple as “sitting down and working it out” or be more involved, with lawyers making decisions—outside of court—with your authority and on your behalf. Your personal circumstances and the relative state of the relationship with your current partner will largely determine whether negotiation makes sense for you, with or without a lawyer.
Negotiation without lawyers
- Controlled by the participants
- Direct lines of communication, no intermediaries
- Lack of critical legal, financial and child development information
- Often leads to unforeseen conflict down the road
- Perpetuates existing communication problems
- Often ineffective
Negotiation with lawyers
- Generally faster and cheaper than litigation
- Access to expert advice
- Protection from future conflict
- More thorough and effective agreements
- Indirect communication
- Loss of control to lawyers
- Elevated tension
- No guaranteed result
As its name suggests, Collaborative Divorce requires sustainable cooperation between you and your partner. While this could seem unlikely given what brought you to this point, remember that now you’ll be working toward a common overarching goal of moving on. Even the harshest adversaries can come together to achieve something they both perceive as a win. For this reason, Collaborative Divorce is almost always quicker and less expensive than litigation, in a system designed to pit one client against the other.
The collaboration extends beyond the two parties seeking to divorce. The attorneys work with each other instead of against each other to help their clients reach their individual and collective goals. Other experts such as financial planners and co-parenting specialists bring their helpful knowledge as needed, and instead of being hired guns work as neutrals for both spouses. Divorce coaches smooth the path to resolution by helping us avoid and deal with the inevitable emotional and relational dynamics that slow the path to resolution.
- Significantly cheaper than litigation
- Faster than litigation or drawn-out negotiation (months, not years)
- Track record of success
- Less emotionally destructive
- More durable agreements
- Focus on building new family dynamic
- Requires commitment from both spouses
- Clients will need new attorneys if they want to litigate
- Clients must assert themselves
- Not designed to accommodate “fighting”
- No way to punish spouse
Mediation exists in two forms: private (voluntary, or “pre-suit”) and court-ordered. You and your partner work with a neutral third-party mediator who will balance your desires and demands against each other and formulate options to arrive at a mutually acceptable agreement. While the mediator will be working for both parties, the actual decisions remain the responsibility of the individual clients.
In a private/pre-suit mediation, you have the choice of being your own advocate. Lawyers are optional during mediation, though one will be required to finalize and draft any agreement. Court-ordered mediations are less flexible, with strict deadlines and schedules. In a pre-suit mediation the parties can choose a mediator to mediate the financial and custody issues. In court-ordered mediation, the court will assign a custody mediator and the parties can choose a separate mediator for the financial issues or have the court appoint one.
- Faster and cheaper than litigation
- Potentially less contentious
- Encourages compromise and civility
- Minimizes conflict
- Helps narrow down the disputed issues
- Can improve communication and co-parenting relationship
- No guarantee of success
- Doesn’t always reflect both parties’ interests equally
- Perception that “everybody loses”
- Frequently a shallow “tit-for-tat” negotiation
Arbitration is sometimes called “litigation lite,” as it follows many of the same steps involved in litigation, albeit outside of a courtroom in a less formal setting. Once selected, your arbitrator will make binding decisions for you, serving the same role as a judge in a courtroom. As in litigation, evidence is presented to support or refute allegations, and witnesses will testify under oath and can be questioned by each client’s attorney.
- Somewhat cheaper than litigation
- Resolution guaranteed
- Relatively quick and efficient compared to court
- Ability to choose your arbitrator
- Relaxed rules allows more evidence than in litigation
- No access to jury
- A stranger decides your family’s future
- No control over outcome
- Leaves room for personal attacks
- Does not improve family dynamic/communication
In litigation, you and your partner are literally suing each other, which sets up a battle in a courtroom. As with any lawsuit, there will be formal legal proceedings like a discovery process, hearings, and depositions. While attorneys are not required, they would be strongly recommended to ensure the welfare of each client. The final decision would rest with the judge. This is the most expensive, drawn-out, and adversarial of all divorce options and participants frequently liken it to a “war.”
- Protection of the court system
- Decision made by elected official
- Guaranteed resolution
- Most decisions are made for you
- Very expensive
- Very inefficient — typically one year or longer
- Very combative
- Loss of control
- Personal attacks are rewarded
- Outcomes can seem callous
- Decisions are difficult to change
Take some time, then take the initiative
Now that you’ve learned a little more about your options, remember that every couple is different, and due to countless variables, the same process will not work for every family. Also, every attorney will not offer every option, so once you’ve narrowed down your choices, seek out one accordingly. As a Certified Family Law Specialist focusing on Collaborative Divorce, Tré Morgan has spent years helping couples go their separate ways without becoming mortal enemies. If you think your partner would be open to this path, contact us so we can start a conversation.