WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Wednesday, May 14, 2014

Starting the Divorce Process: Part 3 - What is the Best Way to get Divorced?

In our previous post, we explored the problem with the way that most resources (including the court's own website) answer the question "How do I start the divorce process?"  Most resources answer this question by telling you which court forms you can file.   However, the court forms don't determine how to divide your finances, or where your children will live.  The court forms only determine whether you will make those decisions for yourself or ask a Judge to make them for you.

Before you decide what forms to file, you need to make a decision about what level of control you want over your own divorce process and major life decisions.  If you have children, you also need to consider your communication and relationship goals for co-parenting post-divorce, and which divorce process will best help you meet those goals.  Each different process offers different levels of assistance from various types of professionals.  Which option is right for you depends on how much help you and your spouse want from professionals and how much of the work you're willing and able to do yourselves.  You should consider all of your options before deciding how you want to proceed:


SELF-HELP OPTION - Also referred to as kitchen-table negotiation, self-help means that you and your spouse are reaching the divorce agreements yourself.  If you're able to resolve all of the parenting, legal and financial issues directly with your spouse then these agreements need to be written down in a contract called a Separation Agreement or Divorce Agreement and presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional and communication issues themselves and research information regarding their legal, parental and financial rights themselves.


SELF-HELP WITH ATTORNEY REVIEW - Many people reach their agreements through the Self-Help Option but want to ensure that the Separation Agreement properly reflects their decisions and protects them legally.  In this option, one party hires an attorney to write the Separation Agreement and other court forms.  Since one attorney cannot represent both parties, if the other spouse wants legal advice regarding the draft Agreement then they would take the draft Separation Agreement to their own attorney for review.  In this case, the parties handled most of the parenting, legal and financial issues themselves and have individual legal advice of an attorney to ensure their decisions were informed.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional and communication issues themselves.


ATTORNEY NEGOTIATION OUT OF COURT - Many people are unable to negotiate directly with each other but want to avoid the financial and emotional cost of court.  In this option, one or both parties use an attorney to negotiate on their behalf.  Depending on the complexity of the issues in the case, this can include meetings with both attorneys and the parties.  In this option, the attorneys are typically only involved on the issues that the parties cannot resolve on their own.  Since attorneys are not usually trained in mental health or financial planning, if there are complex emotional or financial issues, the parties must handle those issues themselves or hire additional professionals.  If agreements are reached then a Separation Agreement is drafted and presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out communication issues themselves.


LITIGATION (or Arbitration) - If spouses are unable to reach agreements, then ultimately they can request that a judge decide for them.  While every divorcing spouse has a right to a trial, the stress, time frame, and cost of litigation are the highest of all the options.  Sometimes if there are factors which make it impossible to settle outside of court (such as domestic violence or financial dishonesty) then litigation may be the only option.  However, in most cases litigation should be the last resort.  Since attorneys are usually not trained in mental health or financial planning, if there are complex emotional or financial issues, the parties must handle those themselves or hire additional professionals.  In this option communication issues are often made worse by the adversarial nature of litigation.  The time and cost of litigation can be reduced by combining it with other options.  For example, a mediator is sometimes brought in to assist with settling specific issues in a litigation case.  In some instances parties choose to use arbitration, submitting their case to an agreed upon arbitrator who will decide the contested issues.  Arbitration is often faster, less formal, and cheaper than awaiting a trial before a judge.  However, the biggest problems with litigation still exist in arbitration: lack of self-determination and lack of communication.


MEDIATION - If you are unable to reach agreements directly with your spouse but are willing to negotiate with them and voice your own interests, then a mediator can help with communication and providing information about legal, parenting and financial options. If the mediator is an attorney, then they can draft the Separation Agreement, but cannot provide either party with specific legal advice.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option, the parties decide the parenting, legal and financial issues themselves with the assistance of a neutral mediator, but did not have individual legal advice of an attorney to ensure their decisions were informed in all respects.  In this option both spouses must figure out emotional issues themselves.


MEDIATION with ATTORNEY ADVICE - It is recommended that both parties obtain individual legal advice throughout the mediation process, or at the very least to review a draft Separation Agreement before signing.  If the mediator is an attorney they can draft the Separation Agreement, but cannot provide individual legal advice.  In this option, the parties decide the parenting, legal and financial issues themselves with the assistance of a neutral mediator, and have individual legal advice of an attorney to ensure their decisions were informed.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional issues themselves.


COLLABORATIVE DIVORCE - While self-determination and the private nature of mediation are attractive to many people, not everyone is comfortable negotiating by themselves.  In a Collaborative Divorce, your collaboratively-trained attorney participates in the negotiation meetings with you and helps you advocate for your position.  Unlike the attorney negotiation option, in a Collaborative Divorce the collaborative attorneys formally agree not to go to court, which increases the likelihood of an out-of-court settlement.  The other hallmark of Collaborative Divorce is the use of specific neutral professionals in the process to ensure that communication improves and that parties obtain the information needed to make informed decisions.  A Collaborative Coach/Facilitator helps parties communicate better, recognize their emotional triggers in the process, and fosters a team approach to problem solving.  A Financial Neutral helps parties collect, summarize and evaluate financial options so that any legal decisions reflect the parties actual financial goals.  A neutral Child Specialist may be consulted if there are specific child-related issues requiring evaluation.   Each participant in the Collaborative process has a role that helps the parties address a need that arises during divorce.

Many attorneys and most court websites in Massachusetts make it seem like your only option is to file a Complaint for Divorce and start litigation.  That is simply not true.  The other six options presented above result in a Joint Petition for Divorce when successful.  All of these options range in the amount of help you receive from professionals, and in most cases the more help you receive the more cost there will be (although this may not be true in litigation where many of the costs are related to continuing conflict rather than resolving it).  You have a choice as to how much help you need.  The most important part of that sentence is that YOU HAVE A CHOICE!  Make it an informed one.

To see a summary of these options refer back to the chart we provided in Part 1 of this series.

Thank you to Dan Finn for inspiring the images in this post.


1 comment:

  1. I think collaborative divorce is a good process as it is a collaboration of both the parties with no conflicts and no media and press involved and both spouses can take mutual decision and as they know much better than any Judge in this regard. Good option for an easy divorce.

    ReplyDelete

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