Options for Choosing a Divorce Process
By Irene King
Do-It-Yourself
In a world where everything has a “DIY” option, divorce is no exception. Also known as the “kitchen table” divorce, this option assumes you and your spouse have an agreement on all issues and you complete all documents related to the divorce yourself, or one of you hires an attorney to draft a legally binding separation agreement and the other spouse hires an attorney to review the separation agreement. This is likely the lowest-cost option and the one in which a couple has all control over the outcome. It can be very helpful to have a consultation with an attorney before engaging in a DIY option to ensure you understand the legal consequences of your decisions.
Mediation
Mediation involves a neutral third person who facilitates the settlement negotiations between you and your spouse. You can choose to be represented by an attorney, or you can mediate without an attorney “pro se.” The mediator meets with you and your spouse to facilitate the resolution of all issues relating to the separation and divorce. A mediator cannot give legal advice to either of you in mediation and cannot draft any legally binding documents. When an agreement is reached, the mediator may prepare a summary of the terms. An independent attorney must draft the legally binding settlement documents.
Collaborative Divorce Process
Collaborative divorce process is an innovative approach to divorce and gives you and your spouse the opportunity to negotiate the terms of your divorce with the guidance and support of professionals trained in the Collaborative process, with a commitment to resolve all issues out-of-court. Each spouse is represented by an attorney trained in the Collaborative process, and together you customize your divorce team. This team can include a financial neutral, a divorce coach/facilitator, and/or a child specialist. The process is transparent and focuses on creating a safe, family-focused environment to make intelligent, long-lasting decisions. While the law is one data point to consider when going through a divorce, this process promotes creative problem-solving that skillfully crafts a customized solution for each family. A win-win approach is used to maximize resources and especially craft an outcome that’s based on what’s most important to all family members. Each spouse is encouraged to consider not only their own needs, but the needs of their family as a whole, and to work with the support of the team to redefine the family. Collaborative divorce builds the scaffolding to solidify a new foundation for you to co-parent in a healthy way, divide property and allocate resources in a practical way, and ensure each family member is set up for success in the next chapter of your life.
Settlement Negotiations
Settlement negotiations through attorneys typically stop just short of a decision made by a judge in a traditional litigated divorce. Negotiations may take place after a lawsuit has been filed, and issues may settle through mediation, or through attorney-led written proposals and counter-proposals. Negotiation between attorneys often goes back and forth over time until a settlement is reached and settlement documents are prepared and executed. A judge does not decide the divorce settlement, but the threat of going through with depositions, discovery, court hearings, and all of the gamesmanship associated with litigation to obtain a judge’s decision is often the driving force behind the settlement.
Traditional Litigation
Litigation is a long, expensive process. When couples have no ability to make any decisions themselves and file a lawsuit to have a judge make decisions for them, they are in litigation. This option ensures a fight and escalation of conflict at every stage of the process. The couple loses all control over decision-making and chooses to expend all resources, time, and effort and ensure the transactional, practical, and emotional fallout of a litigated divorce. Often, children are the true victims of a litigated divorce; although even in families without children, a litigated divorce is expensive, intensely emotional, and traumatic. Sometimes a settlement is accomplished on the courtroom steps just before a trial begins, but even if a settlement is reached, it’s typically accomplished at a time when the parties are out of resources, exhausted, or as a result of bullying and coercive tactics. Parties may be dissatisfied with the result of litigation because they had zero input during the process and relied on a stranger to make life-changing, permanent decisions for the family.
Irene King is the founder of King Collaborative Family Law in Charlotte, NC, where she is a Collaborative attorney, a certified mediator of family conflict, and works with clients to have the healthiest divorce transition possible. She has 18 years of experience and is committed to guiding clients in resolving their conflicts peacefully and rebuilding for the future with integrity and dignity.