By Rosemarie McElhaney, Attorney/Mediator
If you have never been divorced, but are planning to do so, you are probably navigating a maze of advice and information from friends, neighbors, family, and veteran divorcees from whom you cannot escape to a place of calm and reason. Where do I start? What do I do? Who do I call? What are my rights? How do I protect my rights? How will this affect the children? How will I get through this? Are some or all of these questions endlessly whirling through your thoughts?
If you have been divorced before, most of these questions will still obsessively assault you, but you may have one advantage. You may already know that you absolutely refuse to go through the same hellish experience that once cost you your dignity and your assets.
The good news is that there are several alternatives for you. You should take a moment to read about each process available and make a careful choice in balancing the merits and/or disadvantages of each. Make your final choice according to where you see you and your spouse being most successful according to temperament and history of communication style. Consider the following:
Neither party has an attorney. Parties represent themselves, but must nevertheless meet statutory requirements for filing the initial pleadings, generating discovery and filing the final judicial forms. In my opinion, this is appropriate for only the most basic of scenarios. No children, little or no assets, and little or no complexity.
The traditional adversarial approach which, from the beginning, prepares for the advent of possible trial. Each party has an attorney who will engage in vigorous discovery in preparation for court intervention. Neither party maintains control of the process, which is relinquished to attorneys and the court. Where parties are absolutely unable to communicate or compromise due to power imbalance, extreme anger, manipulation, and/or rising resentments, this is sometimes the only alternative.
In arbitration, an outside neutral party called an arbitrator makes the ultimate decision in the case. The arbitrator is similar to a judge in the court and will make a decision for you. The parties appear before the arbitrator with their respective attorneys. Using the services of an arbitrator may save time and the cost of additional paperwork and hearings in preparation for trial. However, the decision is binding and it is not subject to appeal.
Neither party is represented by counsel. The mediator will facilitate communication, isolate issues, explain the law, and suggest options, but will not give legal advice to either party. The advantage is that in those cases where the parties are able to be flexible, they take back their power and assume responsibility for the ultimate resolutions and outcomes regarding property distribution, custody issues, and their future. Where agreements are reached, they tend to be more binding because of the exercise in mutual participation. Where possible, this method has many advantages over litigation. The disadvantage of mediation is that if an impasse is reached, the mediator cannot represent either party because of the inside information to which he/she is now privy, and both must seek legal representation. This is a cost-effective approach where parties are flexible, cooperative, and communicate well.
This is a relatively new process quickly growing in popularity, where both parties are represented by attorneys who will advocate for his/her respective client but where counsel and parties have contracted never to seek court intervention. Each party has an advocate to represent his or her respective interest. All participants are committed to collaborating in the best interest of the family unit, especially the children. There are several variations to collaborative divorce, including the interdisciplinary method where a team of professionals is in place to assist the parties where necessary. That team will consist of two collaborative attorneys, one or two divorce coaches from the mental health profession, a financial planner, and a child specialist where applicable. All professionals are licensed in their field, usually have a minimum of five years experience, and are fully trained in the collaborative process. The goal for all is to achieve a win-win resolution for the principals and their children. Again, as in mediation, if the process should fail, or if either party decides to resort to the court, the process will terminate and the parties will need to seek new attorneys. This process is different from mediation in that each party is legally represented. In mediation, neither party has an attorney; the mediator functions only as a neutral facilitator.
These are essentially your choices. Your next step, unless you plan to do your own divorce, is to find a qualified family law attorney. The best sources of information, in order of preference, are personal referrals, the local bar association, and the Internet.
It is important to select representation by professionals who specialize in the family law arena. If you plan to mediate or proceed by collaborative law, look for individuals who have specialized training and experience in each of these processes. Do not hesitate to ask the service provider about his or her training, experience, and specialized area of law.
You should now be armed with the basics for embarking on the difficult challenge ahead. All that remains is for you to maintain the equilibrium you need to preserve your assets, protect your rights, and construct the foundation for a financially and emotionally stable future foryourself and your children, if any.
The secret of divorce is for both parties to cooperate enough to avoid losing everything that you are each wishing to preserve and protect, i.e., the happiness and best interest of the children, your time, your money, your assets, your dignity, and your sanity.
Don't lose the forest for the trees.
The information you obtain at this site is not, nor is it intended to be, legal advice. Nor does this site provide any warranties. You should consult an attorney for individual advice regarding your own situation.