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, spouses may each retain divorce lawyers, who represent the spouses’ interests. The public mistakenly believes that “lawyering up” frequently causes high costs and a “War of the Roses.” While this can happen, spouses and divorce lawyers control litigation. Spouses that select experienced divorce lawyers that promote reasonable and constructive approaches will see quick and cost-efficient resolutions. Cost-saving and collaborative methods include retaining joint experts and opting for private mediation before a settlement judge or mediator. Spouses should strongly and clearly emphasize their desire to resolve their divorces to their divorce lawyers because spouses ultimately control the divorce litigation.
Even when the parties cannot settle the entire case, if the divorce lawyers are cooperative and the parties take reasonable positions, then they can often resolve many significant issues, to streamline the case and save substantial time and money. If the case does not settle, then the parties may 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 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, parties may retain neutral financial professionals to evaluate financial issues and/or child specialist regarding parenting plans and child custody issues. The professionals will withdraw from representation if the cooperation breaks down.
The Collaborative Law Model may make arriving at a resolution significantly longer to achieve because there are no deadlines. If the process breaks down, then the parties must hire new divorce lawyers and start over with the Traditional Divorce Model. If either side has a high degree of hostility unrealistic expectations, then 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
Mediation has the best chance for success when spouses have similar knowledge concerning the community estate and share a similar interpretation of fairness. In the Mediation Model, spouses meet with a neutral divorce mediator, who assists the spouses reach an agreement. A spouse may consult with their own divorce lawyer prior to or during mediation, but mediator cannot ethically provide any legal advice to any spouse. The mediator only facilitates settlement and does promote or oppose any particular settlement because to the mediator, any settlement is intrinsically good. The mediator’s limited role presents issues in high-net worth divorces because a spouse may not understand the full extent of the community estate or lack the financial sophistication necessary to divide the community estate. The spouses’ relationship may similarly make mediation problematic if one spouse emotionally or psychologically dominates the other. Unless a spouse has all the necessary information and trusts the other spouse, mediation may be unwise. Unsuccessful mediations will likely require litigation.
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