Some divorces go smoothly. The spouses are able to maintain civility, negotiate an agreement covering the major issues of divorce, cooperate in raising their children, and even remain friends. Other divorces rival the worst cases you may have seen in TV or movies—the divorce becomes a war, with each side attacking the other in any way possible. Two people who must have loved each other at some point in the past can act in ways that were completely foreign to them prior to the divorce. Sometimes the personalities of the players make things so ugly, but just as often, it’s the actual process they’re going through that brings out the worst in everyone. It’s essential to understand the steps involved in getting divorced so that you can choose the process that causes the least amount of misery in your life.
From a legal and financial perspective, divorce involves creating an agreement between you and your spouse about how you will divide your property, provide or receive financial support, care for your children, and pay for the children’s needs. Although different states refer to the agreement by different names (including marital settlement agreement, property settlement agreement, and separation agreement), we will refer to it as a divorce agreement. In an ideal world, you and your spouse would sit down together and create your own agreement. You would need to make sure you were aware of your rights and responsibilities, but you would be in control of the decisions. At the opposite extreme, you fail to reach an agreement and a judge creates one for you in the form of a court order.
It is rare for couples to negotiate their divorce agreement themselves without legal assistance. It is even more rare for judges to make all the decisions. In fact, less than 1 percent of divorces end up in court. Between these extremes are a range of options we refer to as the Spectrum of Control, which includes:
- Self-Help
- Collaborative Law
- Mediation
- Lawyer-Led Negotiation
- Arbitration
- Litigation
We will go into more detail throughout the site; for now, we just want to introduce the concepts. This will allow you to begin considering if, when, and how you want to involve a lawyer in your divorce.
Self-help divorce is what we call the process used by couples who negotiate directly, without the help of divorce professionals such as lawyers or mediators. This process keeps you highly involved in the negotiation of your divorce agreement. Unless your spouse is very controlling, or you are unable to express and negotiate for what you want, working together to define each aspect of the agreement lets you maintain a high degree of control.
While self-help divorce lets you maintain control, without professional advice, you run the risk of inadvertently giving up your rights. Divorce laws are complicated; it is rare that both spouses have the time, energy, and desire to learn them to the degree necessary to preserve their rights. In all but the simplest cases, we recommend that each party retain the services of a lawyer to at least advise them of their rights and review their agreement before they sign it. Using a lawyer does not mean that you are heading to court, but as we will discuss later, you do need to be careful about the lawyer you select. Lawyers often rely on the threat of going to court to give them leverage in negotiations. Such threats can escalate disagreements into wars, which are often not in your best interest.
The relatively new collaborative law process is one way to get the benefits of an attorney without the threat-laden, adversarial approach attorneys have been trained for (and sometimes have difficulty avoiding). Collaborative divorce is a set of voluntary ground rules entered into by the attorneys hired by you and your spouse. While the details vary from lawyer to lawyer, the central idea is that the parties hire lawyers who agree in advance not to take the case to trial. If your case cannot be settled and you decide to litigate, you both have to hire new attorneys.
If you are someone who says, “We are only going to hire lawyers if we can’t work it out and it gets really ugly,” then collaborative divorce is probably for you. Collaborative divorce lawyers help you make good decisions about financial issues. For example, they advise you about the hidden pitfalls of the tax code and the intricate rules imposed by the US Department of Labor and Internal Revenue Service governing retirement plans. They make sure you don’t make document-drafting mistakes that cost both parties in ways they didn’t expect. Collaborative divorce lawyers make sure you understand the law, your rights, your obligations, and the legal effects of your decisions.
The next step along the Spectrum of Control is mediation. Mediation allows you and your spouse to reach a fair settlement with the help of a third, neutral party called a mediator. Mediators, who can be lawyers, mental health professionals, clergy members, or other professionals trained in alternative dispute resolution techniques, help you and your spouse identify and resolve issues. The most important thing to understand is that mediators cannot give either of you legal advice—a mediator is not a substitute for your own lawyer. The mediator’s role is to help you and your spouse communicate and reach agreement, while your lawyer’s role is to make sure your legal rights are protected.
Lawyer-led negotiation is the most common process used for creating a divorce agreement when lawyers are involved. This approach is often selected when the degree of animosity between the spouses keeps them from being able to work together productively in the same room, as is required by the collaborative law and mediation processes. Although in lawyer-led negotiation you still decide whether the terms of the agreement are acceptable to you, your lawyer works with your spouse’s lawyer to create the agreement.
During negotiations, your lawyer should share with you any written correspondence sent to or received from the other lawyer. However, there is likely to be a fair amount of verbal communication between the lawyers. Your lawyer will likely discuss the content of these conversations with you, but here you get into playing the old game of telephone, where interpretation begins to play a significant role. You generally are trying to understand what is important to your spouse so you can consider where you are willing to bend in order to get what is important to you. Your spouse’s words are filtered by his or her attorney and then by your attorney. Of course, the same is happening in reverse. The attorneys have their own biases, which certainly get added to the mix. In the end, while this process often makes sense, the risk of miscommunication can really slow the process down.
Arbitration and litigation are the processes that provide you with the least control over your divorce. These nearly equivalent processes are used when negotiations break down. In both arbitration and litigation, you place the decisions regarding your divorce in the hands of a third party.
When you choose to arbitrate, you and your spouse split the fee for an arbitrator (rather than the state paying for the judge). Arbitrators, unlike mediators, act as judges. They are professionals trained to hear testimony, take evidence, and issue actual decisions for the couple. When divorcing partners decide to arbitrate their case, all parties must first sign an arbitration agreement. This document gives the arbitrator decision-making authority, narrows the issues to be resolved, and defines whether the arbitrated award will be binding and thus become a court order.
As in mediation, you and your spouse usually both hire attorneys to help with the arbitration process, so that you are both advised and represented by experienced divorce lawyers. During arbitration there is an actual “hearing,” similar to a court hearing, but in a less formal setting. There are opening statements, presentations of the evidence, cross-examination, and closing arguments. As in a court trial, you have little control over the outcome.
We will consider arbitration and litigation in more detail in other articles. Neither option is one we recommend you choose without first at least trying to reach agreement by means of a less adversarial process. Not only do you have the least control over your divorce with arbitration and litigation but they are also the most expensive processes because of the extensive preparation work that must be done before arbitration or a court trial. If you wish to or, because of children, need to be on good terms with your spouse after the divorce, having your agreement dictated by a third party is not the most amicable way to move into the next phase of your relationship.
