Once you have made the difficult decision that you are ready to pursue a divorce, one of the first choices that you will need to make is what type of divorce process you want to utilize. Many people are not aware of the various options available to them and assume that they will need to go to court to resolve their divorce. That is not always the case.
Here, I will review three divorce options, detail the differences between them, and help you better understand what to expect with each of them in order to help you decide which option seems best for you and for your children.
What is mediation?
The primary reason that people choose to mediate their divorce is that everything will be negotiated out of court with the help of one professional. This allows the process to be less stressful, take less time, and consequently be less expensive than the other options that are available. In addition, you and your spouse will make all of the important decisions, rather than a judge making them for you so you maintain control of your and your children’s futures. Your children will not be part of this process in any way which will spare them being dragged into the middle of your legal issues with each other.
There are wide variations across states regarding the exact nature of the mediation process, so it is important for you to research this prior to determining whether this is the right choice for you and your specific situation.
If you choose to mediate your divorce, you and your spouse will typically work with one mediator who is either an attorney or a non-attorney mediator. Utilizing a mediator who is an attorney has numerous benefits. They are usually matrimonial (divorce) attorneys who are highly trained in all of the legal issues pertaining to divorce in your state. In many cases, they are also able to draft and file the final divorce agreement once all decisions have been made. You would need to hire an attorney to do so if you chose to work with a mediator who is not an attorney. That being said, there are many excellent non-attorney mediators who are highly skilled and effective.
The most important criteria for choosing a mediator are finding someone that
- You feel comfortable with
- Who has a lot of experience mediating divorce
- Who comes highly recommended from trusted sources.
The process of mediation involves sitting together with your spouse and the mediator and negotiating all of the details pertaining to both financial matters and child custody (in some states referred to as Parental Rights or Responsibilities). The mediator does not represent you or your particular interests and is not an advocate for your specific needs. Rather, their role is to facilitate communication, compromise, conflict resolution, and ultimately agreement on terms. There are also times, particularly in high conflict situations, that the mediator will separate the spouses and go back and forth between them in an attempt to help them come to agreement on the terms of the divorce.
When is mediation not the best option?
Mediation is clearly not for every couple. In order for this process to be successful, several conditions need to apply. First, you generally need to feel safe sitting in the same room as your spouse, and there needs to be a basic level of trust between the two of you. Given that lawyers will not be communicating for you, you need to have a basic ability to communicate with your spouse. You do not need to agree on everything, but you at least need to be able to talk together in order to reach agreement.
There are certain situations that are not well suited to mediation. These include:
- Marriages where there is a history of abuse
- When there has been a total breakdown of trust and/or communication
- When there are highly complicated financial issues (although this is still possible)
- When one or both of the spouses are struggling with substance abuse or serious mental illness (although this is still possible if both spouses can demonstrate a basic level of mental competence)
- If you feel the need to have an attorney who is specifically advocating for your needs
What is Collaborative Divorce?
Collaborative Divorce is the other non-litigated option. This means that both spouses commit to not going to court and to resolve their divorce without engaging in a lengthy and expensive legal battle. It differs from mediation in several important ways. First, both spouses have a collaboratively trained matrimonial attorney who is representing them and specifically advocating for their needs. However, the two collaborative attorneys are not fighting against each other to win (as happens in litigated divorces) but are working towards a mutually created settlement. In addition, one or two collaborative divorce facilitators, who are specially trained mental health professionals such as a psychologist or social worker, typically serve to manage the process.
When a single coach is utilized (which is most common), their role is to manage the emotions that inevitably surface during every divorce negotiation and to assure that the communication between spouses remains respectful and productive. Custody decisions are also made with the help of the facilitator who is able to make sure that the child’s particular emotional and age-related needs are the primary basis of those decisions. In the event that there are complicated financial issues that are beyond the expertise of the attorneys, it is also an option to include a Financial Neutral as part of the collaborative team. This person is typically a Certified Divorce Financial Analyst (CDFA) who is specially trained in helping divorcing couples disentangle their finances and creating plans to ensure their financial stability in the future.
The goal of this process is to make decisions about finances and child custody in an atmosphere of respectful communication, honesty and transparency, and where the needs of the children are always the top priority. It is not a process that is free of conflict, but one in which the conflict is managed toward the goal of negotiating compromise.
Benefits of Collaborative Divorce
There are many benefits to the collaborative process. (In the spirit of full disclosure, let me remind you that I am a collaborative divorce facilitator and that I wholeheartedly believe that this is the best possible divorce resolution option available).
- A team of professionals work together to help you negotiate a mutually agreed upon resolution
- You and your spouse learn more effective ways of communicating and resolving conflict that you can utilize going forward as you co-parent with your ex
- As with mediation, you control the process as well as the final decisions that are made (rather than a judge dictating those things)
- There is less stress involved since the professionals are committed to the process and to help you manage your painful emotions
- The multidisciplinary team serves to make this an efficient and cost-effective process compared to litigation which can take much longer and cost significantly more
Should the collaborative process fail, it is important to be aware of the fact that you will need to start all over with new litigation attorneys since your collaborative attorneys will no longer be able to represent you in court. While this poses a significant potential risk, it can also serve to motivate the spouses to see the process through to successful completion.
What is Litigation?
The third divorce option is to litigate through the court system. This is a totally different type of process than either mediation or collaborative divorce. Each spouse has an attorney who represents their needs and is committed to fighting for those needs to be met. It is an adversarial process in which the attorneys are working to prove to the judge that their client deserves something (either in terms of money or time with the children) that the other spouse does not deserve. The judge makes the final decision, not the spouses, and that decision is binding.
If you and your spouse are litigating about custody and are unable to reach agreement, a trial will take place to determine where your child will reside and the schedule of visitation with the other parent. Each lawyer will try to prove why their client having custody is in the best interests of the child. The children will be assigned an attorney (they are referred to differently across states including Attorney for the Child, Counsel for the Minor Child, Law Guardian) who will represent their interests and be their voice in the process. A forensic psychological evaluation of all family members may be completed by a court-appointed psychologist, and the opinion rendered in this evaluation can have significant impact on the judge’s ultimate decision.
Risk of Litigation
As you can see from this description of the process, it has the potential to get very ugly very quickly. Accusations will be made about each of you in an attempt to discredit your ability to be a good parent. Your children will be put in the position of feeling like they have to take sides against one of you and will be drawn into the legal process. All of this serves to increase the tension and anger that typically already exists between you and your spouse, making it increasingly difficult to be able to effectively co-parent with each other in the future.
A litigated divorce can take much longer than the non-litigated options for several reasons. You are at the mercy of the court’s calendar which is often crowded and unpredictable. You might have court dates scheduled months apart and postponements are not unusual. Evaluations need to be completed and the expert’s schedules need to be coordinated with that of the court. Given that we know “time means money,” this process can become extremely costly.
The attorney’s goals are not to work together to negotiate a compromise (as it is in collaborative divorce) but rather to fight to the end on their client’s behalf, and this takes time. As is the case for most win-lose battles, both parents and children often pay a high psychological and emotional price. It is rarely ever a win-win proposition.
When is litigation the only option?
There are unfortunately circumstances in which litigation is the only option. These include:
- Spouses are unable to reach agreement by means of the non-litigated options
- Domestic violence or abuse is present in the marriage
- One or both spouses are struggling with substance abuse or serious mental illness
- Trust and/or communication have completely broken down between the spouses
If at all possible, resolving your divorce out of court, through either mediation or collaborative divorce, will result in the least amount of emotional turmoil for you and your children. However, there are unfortunately some situations in which litigation is your best option. So, how do you decide which process to choose? I would recommend that you set up meetings with one or more attorneys and explore with them which process they believe would best fit your particular marital situation. Be sure to include attorneys who mediate, collaborate, and litigate so that you can get multiple perspectives on your situation. Based upon their expert opinions, you will have the information necessary to make an informed decision.
Please remember this: Do everything within your power to stay out of court! It is in your children’s best interest for you to resolve your divorce in a non-litigated manner. It will cause the least amount of emotional turmoil for your children, will give you and your spouse the greatest chance of remaining able to effectively co-parent once the divorce process is completed, and will save you thousands of dollars in legal fees.