By Jane Cottrell, Esq. – Guest Blogger
There are several ways to get divorced. This post briefly describes the main ones, in order of ascending expense.
First, a couple of definitions. The separation agreement is the contract between you and your spouse in which you divide your property, set a plan to co-parent your children, and determine budget and spousal support. The marital estate comprises all your assets and liabilities.
The “kitchen table” divorce
If you and your spouse are motivated and your marital estate is simple, theoretically you can sit down at your kitchen table, work out the terms of your separation agreement, find the required forms online, complete the paperwork and file it with the court. In reality this rarely happens. People think they can do it but questions develop, doubts set in or the court procedure seems daunting.
Mediation
Mediation is a process whereby a neutral third party facilitates a conversation between you and your spouse about the terms of your separation agreement. The mediator does not decide anything, but supports the couple’s decision-making process. Mediators are often lawyers but they need not be; many good mediators come from social or behavioral science backgrounds. If the mediator is a lawyer, he or she cannot ethically represent either spouse, as that would be a conflict of interest. Sometimes couples in mediation have lawyers who attend mediation sessions with them. Other times spouses have lawyers with whom they check on legal points between mediation sessions. Some couples choose not to use lawyers at all and work solely with the mediator.
Collaborative divorce
In collaborative divorce, each party is represented by a lawyer, but both lawyers and both clients commit to a common goal: to negotiate the terms of the separation agreement in a constructive, non-adversary manner. Often there are multidisciplinary aspects, involving a financial specialist (especially if the marital estate is complex) and/or a child specialist. If the collaborative process breaks down and the divorce is litigated, both lawyers are disqualified from representing their collaborative clients in court; the clients must start over with different lawyers. Thus, there is a strong economic incentive to make the collaborative process a success.
Litigation
Until mediation and collaborative law entered the picture, taking one’s spouse to court was the principal way people got divorced. Each party is represented by a lawyer, who typically charges an hourly rate, in an adversary judicial proceeding that tends to become asset-focused. 90% of litigated divorces are settled before trial, and of the 10% that are tried, most settle during trial. As a generalization, this is the most expensive way to get divorced, speaking in both economic and emotional terms.
Hybrids
Recently a number of processes have emerged that combine the pluses of mediation and collaborative divorce and eliminate the minuses of litigation. The early leader among these hybrids is Wevorce (wevorce.com), an amicable, structured, flat-fee, family-focused, customized process with online features and multidisciplinary options. (The writer of this post is a Wevorce associate.) Wevorce is not for everyone; it’s “divorce for grownups.” Couples need the right motivation; if spouses cannot sit down and have a conversation about their kids for 20 minutes without yelling, they are unlikely candidates for Wevorce!
Jane Cottrell is a lawyer and mediator specializing in amicable divorce. She practices privately and mediates divorce for The Mediation Center of Dutchess County (NY). Jane has mediated with individuals and corporate parties in both the US and the UK (where she lived and worked for seven years). As a mediator she practices both facilitative and transformative techniques.
