Considering Divorce? Explore Your Options
If you’re contemplating divorce, you have several options about how to proceed. There are four broad categories of divorce alternatives: Do-It-Yourself (DIY), Mediation, Collaborative and Litigation. Let’s take a look at the pros and cons of each one.
The best advice about Do-It-Yourself Divorce, is DON’T Do-It-Yourself!
Divorce is very complicated, both legally and financially. You can easily make mistakes, and often those mistakes are irreversible. The only scenario in which a Do-It-Yourself divorce might make sense would be in a case where the marriage lasted only two or three years and there are no children, little or no assets/debts to be divided, comparable incomes and no alimony. In a case like that, a Do-It-Yourself divorce could be accomplished relatively quickly and inexpensively. Nevertheless, each party should have their own separate attorney review the final documents.
In mediation, a couple works with a neutral mediator who helps both parties come to an agreement on all aspects of their divorce. The mediator may or may not be a lawyer, but he or she must be extremely well-versed in divorce and family law. It’s also critical for the mediator to be neutral and not advocate for either party. Both parties still need to consult with their own individual attorneys during the mediation and prior to signing the final divorce settlement agreement.
There are pros and cons to consider before deciding if mediation is right for you. On the “pro” side, divorce mediation may:
- Result in a better long-term relationship with your ex-spouse since you will not fight in court.
- Be easier on children since the divorce proceedings may be more peaceful.
- Expedite an agreement.
- Reduce expenses.
- Help you stay in control of your divorce because you are making the decisions (and the court isn’t).
- Allow for more discretion. Mediation is private; litigated divorce is public.
On the “con” side, divorce mediation may also:
- Waste time and money. If negotiations fail, you’ll need to start all over.
- Be incomplete or unduly favorable to one spouse. If the mediator is inexperienced or biased towards your husband, the outcome could be unfavorable for you.
- Result in an unenforceable agreement. A mediation agreement that’s lopsided or poorly drafted can be challenged.
- Lead to legal complications. Any issue of law will still need to be ruled upon by the court.
- Fail to uncover certain assets. Since all financial information is voluntarily disclosed and there is no subpoena of records, your husband could potentially hide assets/income.
- Reinforce unhealthy behavior patterns. If one spouse is domineering and the other is submissive, the final settlement may not be fair.
- Fuel emotions. Mediation could increase negative behavior of a spouse with a propensity for physical/mental or drug/alcohol abuse.
Couples often hear that mediation is a better, less contentious, less expensive and more dignified way to get a divorce. However, the biggest potential problem with mediation is that the sole role and goal of the mediator is to get the parties to come to an agreement — any agreement! Remember, a mediator cannot give advice. All they can do is try to get you to agree. Unfortunately, not all agreements are good agreements, and in many cases, no agreement is better than a bad agreement. Unless both parties can be reasonable and amicable mediation is not usually a viable option.
Collaborative divorce occurs when a couple agrees to work out a settlement without going to court.
During a collaborative divorce you and your husband will each hire an attorney who has been trained in the collaborative divorce process. The role of the attorneys is quite different than in a traditional divorce. Each attorney advises and assists their client in negotiating a settlement agreement. You will meet with your attorney separately, and you and your attorney will also meet with your husband and his attorney. The collaborative process may also involve other neutral professionals such as a divorce financial planner who will help both of you work through your financial issues and a coach or therapist who can help guide both of you through child custody and other emotionally charged issues.
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In the collaborative process, you, your husband and your respective attorneys all must sign an agreement that requires that both attorneys withdraw from the case if a settlement is not reached and/or if litigation is threatened. If this happens, both you and your husband must start all over again and find new attorneys. Neither party can use the same attorney again!
Even if the collaborative process is successful, you will usually have to appear in family court so a judge can sign the agreement. Still, the legal process can be much quicker and less expensive than traditional litigation if the process works.
Unfortunately, the collaborative method often doesn’t work well to settle divorces involving complicated financial situations or when there are significant assets. In collaborative divorce, just as in mediation, all financial information (income, assets and liabilities) is disclosed voluntarily. Often the husband controls the purse strings, and the wife is unaware of the details of their financial situation. When this kind of inequality exists, the door is open for the husband to hide assets. What’s more, many high net worth divorces involve businesses and professional practices where it is relatively easy to hide assets and income and the issue of valuation can be quite contentious.
Generally speaking, you should NOT use any of these first three options — Do-It-Yourself Divorce, Mediation or Collaborative Divorce — if:
- You suspect your husband is hiding assets/income.
- Your husband is domineering, and you have trouble speaking up or you’re afraid to voice your opinions.
- There is a history or threat of domestic violence (physical and/or mental) towards you and/or your children.
- You or your husband has a drug/alcohol addiction.
The fourth divorce option is the most common. The majority of divorcing couples choose the “traditional” model of litigated divorce.
Keep in mind, though, “litigated” does not mean the divorce ends up in court. In fact, the vast majority of all divorce cases (more than 95 percent) reach an out-of-court settlement agreement. “Litigation” is a legal term meaning “carrying out a lawsuit.”
Why are lawsuits a part of divorce? Because contrary to popular belief, divorce usually does not involve two people mutually agreeing to end their marriage. In 80 percent of cases, the decision to divorce is unilateral – one party wants the divorce and the other does not. That, by its very nature, creates an adversarial situation and often disqualifies mediation and collaborative divorce as options, since both methods rely on the full cooperation of both parties and the voluntary disclosure of all financial information.
If you are starting out with an adversarial and emotionally charged situation, the chances are high that collaboration or mediation will fail.
The most important and most difficult parts of any divorce are coming to an agreement on child custody, division of assets and liabilities and alimony payments. Although you want your attorney to be a highly skilled negotiator, you don’t want someone who is overly combative, ready to fight over anything and everything. An overly contentious approach will not only prolong the pain and substantially increase your legal fees, it will also be emotionally detrimental to everyone involved, especially the children.
Most divorce attorneys will strive to come to a reasonable settlement with the other party. But if they can’t or if the other party is completely unreasonable then, going to court, or threatening to do so, might be the only way to resolve these issues.
Once in court, the role of each attorney changes. Negotiations and compromise move to the back burner. Their new job is to get the best possible outcome for their client.
And once you’re in court, it’s a judge who knows very little about you and your family who will make the final decisions about your children, your property, your money and how you live your life. That’s a big risk for both parties to take, which is why the threat of going to court is usually a good deterrent.
Weigh your divorce options carefully. Every family, and every divorce, is different. If you are able to work with your husband to make decisions and both of you are honest and reasonable, then mediation or the collaborative method may be best. But if you have doubts, a litigated divorce is your safest option.
Jeffrey A. Landers, CDFA™ is a Divorce Financial Strategist™ and the founder of Bedrock Divorce Advisors, LLC, a firm which exclusively advises affluent women throughout the United States before, during and after divorce. He assists women and their divorce attorneys with deciding on the most advantageous way to divide marital assets and enable them to negotiate more favorable settlements, especially when there are complicated financial and tax issues. He also writes for Forbes.com and the Huffington Post.
For further information, please go to: http://www.BedrockDivorce.com or email Jeff at: Landers@BedrockDivorce.com.