How to Choose a Divorce Process
There are several ways to get divorced. It makes sense to do some research. Your choice of the process can impact many things, such as how happy you are with the outcome and how long the happiness lasts. Your choice can determine the amount of money you spend and how emotionally upsetting the process is to you, your spouse, and your children. Your choice of the process can determine how much time it takes to get to the end.
Many people litigate their divorce. One party files a summons and complaint for divorce and serves the other party. The parties attend a series of meetings in court, culminating in a trial date. Cases usually settle, oftentimes on the trial date. A lawyer is frequently assigned to represent the children. Sometimes the children speak to the judge.
An advantage of litigation is that if your spouse won’t participate voluntarily, he or she may respond when served with papers. Another advantage is that one way or another, the case will end. If you haven’t agreed upon terms by the day of trial, the judge will order the plaintiff to call the first witness. When the judge decides, both parties are usually unhappy with many elements of the decision.
There are many disadvantages to litigation. It is expensive. It can be emotionally painful to the parties. It is time-consuming. It doesn’t take into account what is important to each party. The court is limited to only issues that are required by law to be settled. The parties can be embarrassed by the disclosure of personal information. It burns bridges between parents, making co-parenting in the aftermath of a trial difficult or impossible.
Collaborative Law is an alternative to litigation. It is appropriate for most divorcing couples. Collaborative Law is a specific legal process that involves two lawyers and two clients. Frequently, a mental health professional (in the role of facilitator or coach) and a financial professional are part of the collaborative team. The team signs an agreement that states if the collaboration should fail, the parties will hire new lawyers to represent them in a litigated divorce. This disqualification clause is a powerful factor for success. It keeps the parties committed to the process and allows the work to proceed without threats and mistrust. A collaborative table is a safe place for the parties to decide their most important issues and be the architects of their own futures.
The team meets to resolve the issues. One of the lawyers drafts a separation agreement. After signing the separation agreement, the parties can proceed to divorce when they are ready, without appearing in court.
There are many advantages to collaboration. The process is private. The parties are in control of the pace of the process. The parties make their own decisions, with adequate professional support. The parties can thoughtfully and thoroughly examine the important issues. The process allows parties the freedom to craft creative solutions that address issues that are important to them.
Mediation has been around for a while, so most people are familiar with the concept. The parties meet with a neutral mediator, who provides them with legal information that they use to discuss and make decisions on the necessary issues. For parties that are up to the challenge, mediation can be a private, quick, and less expensive process option. A good mediator tailors the process to the needs of the parties. The couple can consult with a financial professional, lawyers, and mental health professionals, as needed, to get the information necessary to reach an agreement.
Frequently, parties will retain an attorney for divorce and attempt to get an agreement before going to court. Both parties and their attorneys sometimes meet together to discuss issues. This is a great concept, but rarely do the parties reach an agreement this way without court intervention. Usually, one party loses patience and asks for the court’s assistance. Traditional negotiation frequently continues during the litigation process.
Kitchen Table Negotiation
Some couples can talk with each other about what they want and come to an agreement on what should happen when they separate. This is rare, but it does happen! The parties can bring their terms to a lawyer and get a separation agreement drafted. This method is inexpensive but does not provide support for the parties, or a source of legal knowledge at the negotiating table (unless you both happen to be lawyers or trained divorce mediators).
Now you know your options. Keep learning, until you decide which process is best for your family. Consulting with a lawyer is always a good idea, preferably a lawyer who has practiced in every pathway to divorce, so you can learn about every method.
Nancy Giardina has practiced family law for 20 years. She is dedicated to assisting clients to find the best divorce solution.
For information and local collaborative practitioners visit CNY Collaborative Family Law Professionals.
For further information on collaborative law visit the International Academy of Collaborative Professionals.
For forms visit the New York State Unified Court System.