The Legal Choices in Divorce

When the difficult decision is made to end a marriage, the next step is to determine what avenue of divorce the couple wants to travel: mediation, collaborative divorce or conventional divorce. The choice is very case specific, depending on factors such as whether there are children to consider, the size of the marital estate, if it is a dual income couple, and often most telling, whether the couple can work together to dissolve the marriage.

One of the most sensible things I have heard regarding the divorce process is that it should be treated as a business transaction. While on first blush that sounds insensitive, it is this pragmatic approach that generally leads to a quicker, less costly divorce. The challenge is for the divorcing couple to think rationally, keep open lines of communication and remain open to compromise.

Conventional Divorce

A Conventional Divorce is the most commonly chosen route to divorce, where each spouse engages an attorney to represent his or her interests. This negotiated divorce can be cooperative or contentious, depending on the individuals and the underlying situation.

More than 95 percent of conventional divorces are settled without a trial. Choosing a divorce attorney involves finding someone you can trust and who will negotiate on your behalf. Most attorneys are interested in helping their clients reach a reasonable settlement, negotiating with the opposing side towards resolution in terms of asset division, child custody and alimony arrangements. Each lawyer takes the lead in a case based on instruction from the client. The case can be cooperative and involve a voluntary exchange of documents with a reasonable resolution, or it can become highly litigated. When evaluating a lawyer, it is desirable to find a lawyer who has “a number of gears” so that he can work collaboratively with the opposing counsel, but if needed effectively ratchet up to another gear.

When the divorcing parties reach an impasse and appear to be headed for a court trial, conventional lawyers have one additional option that has proven quite successful in resolving cases and avoiding what might be a lengthy and costly trial. Both parties agree to a full day where a retired judge or experienced senior lawyer is hired to mediate between divorcing parties and their lawyers, negotiating a resolution that will avoid court.

If all efforts to settle without going to court fail, each lawyer will argue the client’s case in front of a judge, who will listen to arguments on both sides and then reach a final resolution based on the evidence he has heard.

Alternative Dispute Resolutions: Mediation or Collaboration?

In Mediation, the couple generally hires a neutral third party, who acts as a facilitator in discussing and resolving issues of divorce. When a couple is considering a mediated divorce there are certain factors to consider. Do both individuals have comparable knowledge and understanding of the financial conditions of the marriage? Is each of the parties confident in the ability to negotiate effectively with their spouse, or is there an imbalance of power in the relationship with a less dominant party likely to have difficulty voicing his or her opinions? An evaluation of the interpersonal dynamics with the couple might argue against mediation.

Mediators are usually lawyers who have been trained in conflict resolution. In their role as a neutral party, the mediator has no authority to impose a decision or take sides, but instead guides discussions of property settlement and child custody arrangements. It is important to find a mediator that you like, respect and believe is qualified to help you working through the issues of divorce. Bear in mind that each mediator will have a different style and it is important to choose someone whose style resonates with you. He or she may be highly directive, meaning that they will give their input on the likelihood of a proposal being approved by a judge, or suggest certain proposals for resolution. On the other end of the spectrum, a facilitative mediator will only guide discussions and ask probing questions to empower the couple to come to their own settlement.

Once a mediated settlement has been reached, it is recommended that each spouse consult an attorney to review the document. Another more proactive approach can be for each party to hire a review counsel in the initial stages to get advice and direction before they begin mediation. This attorney will not be present in the mediation session, but can be called upon to offer assistance along the way.

Mediation can be less costly than conventional divorce, but it is important to beware of false savings. If the couple is not able to resolve things through mediation, they then must start down the road of a conventional divorce process.

Collaborative Divorce is the newest method in divorce negotiation. Here both parties hire lawyers who agree to work together using cooperative techniques rather than adversarial strategies. Often the collaborative team also includes several neutral experts to help address areas of concern. This could be an accountant or Certified Divorce Financial Analyst (CDFA) to help with financial negotiations, and a child advocate to represent the needs of the children.

The most interesting characteristic of collaborative divorce is that from the start of the process, all parties agree that if the team cannot come to satisfactory resolution of the case, both attorneys will step down and the couple will have to start the litigation process with new attorneys. Collaborative Divorce will generally be more expensive than mediation, but less expensive than litigation.

 

Whether amicable or adversarial, the process of divorce is an emotionally and financially challenging time for both parties, as well as for the family as a whole. Attorneys and their clients can make the best of a tough situation by working to efficiently settle the divorce. This happens when all parties keep emotions in check, think rationally and remain open to compromise. Revenge ends up being costly, both in terms of lawyer hours and emotional trauma.

To learn more about financial factors when divorcing, read my blog “Financial Clarity Helps When Considering Divorce.”

Jennifer Nicasio, CFP®
Jennifer joined HTG in 2005. As an advisor, she helps clients make thoughtful and informed decisions on all aspects of their finances. Jennifer is a CERTIFIED FINANCIAL PLANNER™ practitioner and Certified Divorce Financial Analyst®. As a CDFA™ professional, she helps clients understand the short and long-term implications of decisions they are making during the divorce process. Jennifer has a BA from Middlebury College.