Avoiding Litigation: Options for Divorcing Couples
Did you know that divorce does not need to be hostile or a lengthy court process, with opposing attorneys arguing their case in front of a judge? Two other options allow couples to settle their divorce outside of court - through either mediation or through the collaborative divorce process.
In divorce mediation, couples work with a neutral third party (a mediator) to resolve their divorce outside of court. The mediator guides the couple to reach an agreement on the divorce terms. Most trained mediators are attorneys, but many qualified mediators do not practice law.
The benefit of using mediation is that you and your soon-to-be ex can work with the same mediator. There is no need to hire separate mediators to walk you through the divorce process (although it may be advisable for each party to have an independent attorney review the final terms of the separation agreement.)
If you hire a mediator, they will meet with you and your spouse to help you reach an agreement in private, scheduled sessions. Your mediator will act as a negotiator to help you come to terms on important issues, such as child custody, child support, and division of property and debts. Once you reach an agreement during mediation divorce process, your mediator will draft a memorandum of understanding outlining the terms that were agreed upon between you and your spouse.
A second option for spouses who would like to divorce without a lengthy court battle is collaborative divorce. The difference between collaborative law vs. mediation is that collaborative divorces are always led by two attorneys who specialize in collaborative law. In the mediation process, you and your spouse must hire just one neutral mediator. In the collaborative divorce process, each person must have their own collaborative divorce attorney. Like mediators, a collaborative divorce lawyer works with spouses to help them reach an agreement on the terms of their divorce.
The collaborative divorce process requires four-way meetings. You and your spouse meet (with each of your attorneys present) to negotiate the terms of the divorce. You will also meet separately with your own attorneys in order to discuss matters important to you. You may call in outside experts, such as mental health professionals or finance professionals. If you and your spouse are unable to come to an agreement, you must each hire new attorneys to complete your divorce through the traditional divorce process in the courts.
Which Approach is Best?
It depends. While collaborative divorce and mediation both allow the option of negotiating divorce without going to court for a trial, there are differences between the two methods.
The main difference is that you do not need an attorney for mediation, so costs are likely to be lower than with a collaborative divorce. However, a mediator who is not trained as an attorney cannot offer you legal advice; they are simply there to act as a peacemaker and help you to reach an agreement with your spouse. A collaborative divorce attorney can offer legal advice and represent your best interests. The drawback is that collaborative divorce tends to cost more than mediation. You and your spouse will each need to hire your own attorney, which increases your costs.
The primary benefit with both collaborative divorce and mediation is that each approach allows the option to settle your divorce outside of court. You and your spouse have more power to make decisions regarding child custody, finances, and division of debts, instead of leaving these decisions up to a judge. Collaborative divorce and mediation are also usually less tense and anxiety-provoking than going to trial, and almost always less costly than litigation.
While not all divorces can be settled via mediation or the collaborative divorce method, consider whether one of these methods could work for you and your spouse.
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Janet Rhodes Friedman, CFP®, CDFA®, MBA
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