Divorce can be a complicated and messy affair or a relatively painless formality. There are four main approaches that couples can take when choosing to dissolve their marriage. These methods include signing a private agreement, attending mediation, undergoing a collaborative divorce, or simply litigating the issue in court. Which approach is optimal depends upon the issues in contention and the parties’ willingness to work together to achieve a mutually acceptable solution.
Private Agreement
If both spouses are amenable to one another and can agree on how to divide marital assets and arrange child custody, they can simply fill out a divorce agreement and submit it to their local court. The court will review the filing and usually approve it, ordering the marriage ended on those terms. A “do-it-yourself” dissolution of marriage is the least expensive and most efficient option for couples who agree on the important issues. Neither person need retain counsel (though doing so is advisable) or pay added consulting fees.
By drafting the entirety of the agreement privately, the couple can ensure that each spouse retains his or her most important assets. They can also ensure that the separation is handled with minimal disruption to their lives and to the lives of their children. If both parties understand their rights under the law and are capable of maintaining a respectful dialogue, creating a private agreement is usually the best method to dissolve a marriage.
Most courts will accept most privately created agreements. If the agreement appears to be grossly unfair to one party or if the court believes that the terms of the agreement are not in the best interests of any children present, the judge may refuse to accept part of the agreement. If the parties have made arrangements to care for their children and fully understand the terms of their agreement, a court will usually accept it as drafted.
Mediation
In many cases, the spouses will not agree on all issues. One solution is to opt for mediation. Sometimes, a court will order a couple to attend mediation before agreeing to hear their case.
Mediation is a three-way meeting between both spouses and a mediator. During the meeting, the couple attempts to discuss the issues in contention and come up with a mutually acceptable solution.
The mediator may be a professional mediator or an attorney without a stake in the outcome. An unbiased mediator will structure the discussion and help provide each spouse’s perspective to the other party. This can be useful if both spouses are reasonable, but simply having trouble seeing matters clearly due to the flurry of emotions that have surfaced in light of their dissolving marriage.
Mediation is a low-risk and low-cost method of conflict resolution and should be the method of first resort for couples unable to formulate an agreement without outside assistance. The mediator’s decisions are not binding upon the couple; he or she is there to help the couple reach an agreement. In other words, he or she has no authority to order the spouses to agree to anything. Additionally, an unsuccessful attempt to mediate the dispute will not foreclose any other options. The couple may proceed to collaborative proceedings or litigation.
Collaborative Divorce
If attempts to draft a private agreement are unsuccessful and mediation resulted in no progress, couples seeking to divorce may consider collaborative law. It is similar to mediation in that both spouses meet to come up with solutions to the issues underlying the divorce without the aid of a judge or the compulsory authority of any third party.
This particular method of alternative dispute resolution requires an agreement between both parties to avoid litigating the matter; if this method does not succeed, each attorney will withdraw from the process and anything said or obtained during the collaborative proceedings is inadmissible during litigation.
Collaborative law requires no mediator; instead, each party brings his or her attorney. Each attorney advises his or her client, but does not represent the client’s interests in a conventional sense. Collaborative divorce proceedings are non-adversarial. This makes the approach one of the fastest forms of alternative dispute resolution. Each spouse only needs an attorney versed in collaborative law with sufficient time to gather evidence.
Since this method involves each party retaining an attorney, it is one of the more expensive ways to dissolve a marriage. Most couples will reserve this method for situations in which private discussions and mediation have already failed. However, for spouses involved in a contentious divorce that must be resolved quickly or for situations in which one party is more legally sophisticated than the other, this may be a method of first resort.
Litigation
The final method of divorce is litigation. When litigating a case, the spouses retain separate attorneys, prepare their individual cases, and present their arguments to a judge. The judge will then rule and create a divorce judgment, which orders the marriage dissolved and sets out the terms of the dissolution. Litigation is useful in cases where there is no chance that the couple will reach an agreement on certain issues.
Litigation should be viewed as the method of last resort. It is the most expensive way to resolve issues. It also carries a high probability that the court order dissolving the marriage will result in a less than optimal distribution of assets or assignment of custody. Additionally, litigation also creates an acrimonious atmosphere between the couple, as each spouse’s attorney will vigorously represent his or her client at the expense of the other.