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 Dissolution Model
In the Traditional Dissolution model, one or both parties retain an attorney. The attorney 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 often never see the inside of a courtroom. The court and four people control the direction, cost, and duration of the case – two parties and two attorneys. If both spouses select attorneys who are reasonable and constructive in their approach, the case has a high likelihood of an efficient and amicable resolution. Lawyers work for their clients. Often, men and women see this issue from different perspectives. Clients should make their expections and objectives clear to their lawyer 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 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 lawyers.
Even when the parties cannot settle the entire case, if the attorneys 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.
This model is often used in a high net worth matter, where there are significant communication challenges, or when one or both parties have emotional or psychological issues. The Traditional Dissolution Model is also used when one or both parties believe there is little likelihood of reaching an agreement using one of the other models or when one party simply believes he/she needs an advocate. It is not more or less likely that men or women will select this model.
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 an attorney 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 custody issues. The professionals commit that if the collaborative process breaks down they will withdraw from representation. This model may be appropriate for both men and women, and can fit a high net worth situation if the parties both have the right personalities and perspectives.
The parties attempt to learn to work together to achieve an agreed upon result. In doing so, the parties will hopefully develop skills which will enable them to interact with each other after the divorce is final. This can be especially beneficial if the parties have children. 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 Dissolution Model in other situations. If the process breaks down, the parties must hire new 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 pledge 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||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 controls||Complexity of the issues, reasonableness of the parties, and the court|
|Lawyers||Lawyers work toward a mutually beneficial resolution||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 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
In the Mediation Model, both parties meet with a single person, a neutral mediator, who attempts to assist the parties in achieving an agreement. The parties may or may not choose to consult with their own attorneys prior to and/or during mediation. Mediators cannot ethically provide legal advice to the parties. The mediator’s role is to help facilitate a settlement that the parties find acceptable. The mediator does not act as either party’s attorney. The goal of the mediation is to achieve a settlement. The Mediation Model can present a number of problems in high net worth matters, but can be successful for both men and women in the right situation. The mediator should not promote or oppose particular settlements, as the 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, mediation may not be your best option. The advantage of this model is that it is generally more cost-effective than the Traditional Dissolution or the Collaborative Law Models. If settlement is not achieved, litigation may be necessary. This model may be problematic for men or women, if that spouse is less financially sophisticated than the other spouse, knows substantially less about the community assets than the other spouse, or when one spouse dominates the other psychologically or emotionally. This model has a better chance of success for both men and women, if the parties are both knowledgeable about the assets, and share the same desire for and definition of a fair resolution.
Parties are best suited for 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, volatile relationship