If you are planning to dissolve your marriage, you have a number of options regarding how to complete the process. There are advantages and disadvantages to each depending on the nature and complexity of the assets and personalities of the parties. Men and women may view their needs and objectives differently. There is no "one size fits all" solution. One model may be perfectly suited for some parties and inappropriate for others. It is important to fully understand your options before deciding on a particular approach. Whether your matter is a basic conventional divorce or a very complex matter, you will want to understand your options.
Traditional Divorce Model
In the Traditional Divorce model, one or both parties retain a divorce lawyer. The divorce lawyer represents the client's respective interests. It is a misconception that this model frequently results in a “War of the Roses.” In fact, most cases settle, and clients generally do not see the inside of a courtroom. Four people control the direction, cost and duration of the case – two parties and two divorce lawyers. If both spouses select divorce lawyers who are reasonable and constructive in their approach, the case has a high likelihood of an efficient and amicable resolution. Divorce lawyers work for their clients. Often, parties see this issue from different perspectives. Clients should make their expections and objectives clear to their divorce lawyers from the beginning.
In this model, men and women can explore amicable settlement through the use of a private settlement judge, a mediator, four-way settlement conferences, the use of joint experts and other proactive approaches. Using this model, the results achieved are dependent, to a large degree, upon which divorce lawyers the parties retain and whether the parties stay actively involved in the decision-making process as opposed to blindly turning the case over to the divorce lawyers.
Even when the parties cannot settle the entire case, if the divorce lawyers are cooperative and the parties take reasonable positions, they can often resolve many significant issues, thereby streamlining the case and saving substantial time and money. If the case does not settle, the parties will proceed to court (or to an agreed-upon private judge) to resolve the unresolved issues.
Collaborative Law Model
In the Collaborative Law Model, the parties agree to cooperatively work together to achieve the best result for the family as a whole. The parties agree not to go to court over disputes. Each party is represented by a divorce lawyer and often a coach (mental health professional). When needed they may retain a neutral financial professional to evaluate financial issues and/or a child specialist regarding parenting plans and child custody issues. The professionals commit that if the collaborative process breaks down they will withdraw from representation.
Use of the Collaborative Law Model can result in the case taking significantly longer to achieve resolution in that there are no deadlines. However, it can be more expedient and less expensive than the Traditional Divorce Model in other situations. If the process breaks down, the parties must hire new divorce attorneys and start over from the beginning with a different model. If either side has a high degree of hostility, unrealistic expectations, a sense of entitlement, or a mistrust of the other, this is not an appropriate model.
Collaborative Law Model
Traditional Dissolution Model
||Collaborative Law||Traditional Dissolution|
|Who’s in Charge||Parties, unless they don’t settle which results in a termination of the model||Parties, unless they don’t settle the issues, then the court|
|Cooperation Level||Parties promise disclosure and cooperation||Disclosure is legally required.– If inadequate disclosure a party may be sanctioned|
|Communication||Designed for parties to create communication in a planned process with the help of the team||Communication problems of the parties are addressed by the lawyers|
|Fees||Fees can be managed by the parties due to their control of the process unless collaboration is unsuccessful||Fees are determined by the complexity of the issues, the level of compromising that occurs, and by the parties' decisions as to which lawyers they retain|
|Timing||Complexity of the issues and reasonableness of the parties||Complexity of the issues, reasonableness of the parties, and the court|
|Lawyers||Lawyers work toward a mutually beneficial resolution if clients cooperate||Lawyers represent their client’s interest|
|Experts||Jointly retained experts commit to mutually agreed upon resolution||The parties may retain separate or joint experts who represent their interests|
|Court||Designed to avoid court involvement||Court is involved to the extent the parties fail to cooperate or agree. Court exists to motivate an agreement or provide a solution if there is no agreement|
The Collaborative Law Model can be faster, less expensive, foster cooperation, and can minimize short term and long term conflict if both parties make full disclosure, cooperate, and compromise.
The use of the Collaborative Law Model can take considerably longer and can cost far more than anticipated in that there are no external forces to push the progress of the case or court deadlines. If the process does not result in a settlement then there are significant negative consequences:
- Each party’s team must resign and the parties must represent themselves or hire new divorce lawyers
- The costs will include the costs of the failed Collaborative Law Model and the costs of the second model
- The time to complete the process will likely be greater than it would have been had the Collaborative Law Model not been used
Divorce Mediation Model
In the Divorce Mediation Model, both parties meet with a single person, a neutral divorce mediator, who attempts to assist the parties in achieving an agreement. The parties may or may not choose to consult with their own divorce lawyers prior to and/or during mediation. Divorce mediators cannot ethically provide legal advice to the parties. The divorce mediator’s role is to help facilitate a settlement that the parties find acceptable. The divorce mediator does not act as either party’s divorce lawyer. The goal of the divorce mediation is to achieve a settlement. The Divorce Mediation Model can present a number of problems in high net worth divorces, but can be successful for both men and women in the right situation. The divorce mediator should not promote or oppose particular settlements, as the divorce mediator will see any settlement as intrinsically good in and of itself. Unless you know the details of the marital assets and trust your spouse, divorce mediation may not be your best option. The advantage of this model is that it may be cost-effective, if successful. If settlement is not achieved, litigation may be necessary. This model may be problematic, if one spouse is less financially sophisticated than the their spouse, knows substantially less about the community assets than their spouse, or when one spouse dominates the other psychologically or emotionally. This model has a better chance of success for both parties, if they are both knowledgeable about the assets and share the same desire for and definition of a fair resolution.
Parties are best suited for Divorce Mediation if:
- There is trust between the parties
- Both are familiar with the nature, value, and details of the assets
- The issues are not complex
- Both are willing to compromise
- There has not been domestic violence and intimidation is not an issue
- Both have a desire for resolution and closure
- Both have no objection to the other party receiving 51% vs. 50% (“close enough is good enough”) of the assets
- The interests of the parties are relatively similar
- The parties do not have a high-conflict, or volatile relationship