Options for Divorcing Couples

How do Issues Get Decided?

The attorney’s goal should be to help you achieve a high-quality, lasting resolution of all issues, with the lowest possible expenditure of emotional and financial issues. Part of your attorney’s job is to help you determine what is in your best interests and the interests of your children. The first question that needs to be considered is whether a divorce is necessary, or if the need to seek a divorce can be eliminated by modifying the behavior or expectations of one or both parties.

In some cases, a lengthy legal battle may be necessary to protect your children and/or your financial interests. If so, the decision to litigate should be based on the facts of your case. Litigation should never be driven by the emotions related to the divorce.

Traditional Litigation/Adversarial Process

Law school training and the real world attorney work experience combine in a well-established and powerful institutionalization of the adversarial – representative model of conflict resolution. While it is not the only model for negotiating and resolving issues, it is the one that becomes ingrained in anyone who works in the litigation system.

The financial and emotional costs of this process are usually observed as being both outrageously high and inevitable. What is also true is that this model is ill-suited for the purposes of resolving family law conflicts. In this method, the parties objectives or strategies collide, it is assumed that the only way to move past, through, around or over the opposition is to employ the power of the law-based procedures to make something happen. In the face of opposition from the other side, a lawyer looks to the power of the process, and often overlooks the reverberating impact that the process will have on the daily lives of the clients and their children. Furthermore, this power-based, competitive approach nurtures continued resistance, as the participants have little or no reason to view the other side as anything but a threat or something to fear.

In the traditional divorce, both parties hire attorneys and they provide legal advice and represent the positions of their client in negotiations and court hearings, based on the personal needs and viewpoints of their clients.

The parties communicate through their attorneys rather than directly with one another. The process may involve the use of legal procedures known as “discovery” to secure financial and other relevant information.

Each party may hire experts to support their positions. Experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants and other investigators.

Ultimately, if agreements are not reached, the parties and other witnesses testify before a judge who makes a decision on each disputed issue. Most litigation divorces are eventually settled, but only after substantial time, money and emotion have been spent in the conflict.

Collaborative Law

First, both spouses meet with their respective collaborative attorneys to discuss their individual needs and concerns. Then, the couples and their attorneys meet in four-way sessions to reach settlements without involving the court. Every issue – including property division, parenting allocation and support is put on the table in these sessions.

At times, other professionals, including mental health professionals and financial experts, may become part of the “team” to assist couples in reaching solutions. Divorcing couples benefit from the skills, advice and support of attorneys and other professionals while striving to work things out in a positive, future focused manner. The collaborative approach is both pragmatic and grounded in its focus on the needs of the parties. Initially, those needs fall into two categories – process needs and outcome needs.

The process needs are determined by accepting the party in the emotional sate in which they enter the process.

The person may be experiencing a wide range of emotions, such as anger, hurt, distrust, grief, bitterness, fear and failure. These emotions may come with a wide range of personality characteristics, such as intelligence, unsophisticated, analytical, visual, needy or co-dependent. A good process begins by accepting the participant as who he or she is at the outset. The outcome needs describe the desired goals and objectives of the party, which will allow that person to feel that the issues are resolved. As we will see, these outcome needs are developed by analyzing the interest of the party, and moving beyond stated positions which have sustained the conflict.

The core of the collaborative process is to facilitate the making of agreements. To be effective in this role, it is necessary to make a mental shift in the mindset that one brings to viewing both the nature of the conflict and the elements inherent in the personalities, characteristics and resources of the parties.

When a settlement is reached, attorneys file the appropriate paperwork required by the court.

Mediation

The parties hire a neutral third party to assist them in reaching agreements. The mediator does not represent either party, and cannot provide legal advice. Mediation may occur with or without the parties hiring attorneys. If they do not hire attorneys, they are responsible for the appropriate paperwork.

Pro Per divorce

In Pro Per divorce, the parties do not hire attorneys. They reach agreements themselves and they do all the appropriate paperwork themselves. These may be cases in which the blind are leading the blind.