The 4 Ways to Divorce
Is there such a thing as a “good” divorce? Like a lot of things in life, it depends on how you define it.
One couple might decide that “good” means resolved as quickly as possible. Another might prefer the chance to hash out a few key issues with a neutral party. And believe it or not, there are some people who just want to have their day in court. They’re willing to let a judge decide the major issues in their lives in the hopes of somehow getting a decision that they think they deserve, but were unable to attain through direct negotiations with their spouse or indirectly through their attorneys.
There are four types of divorce — Do It Yourself, Mediation, Litigation, and Collaboration — and they all get you to the same point. But the path they take can lead you through very different places. Two are designed to protect you, your children, and your family from the most damaging aspect of a long, drawn-out legal process, and one practically guarantees that no one will emerge unscathed.
As an attorney whose practice is focused exclusively on Family Law and as an advocate for non adversarial divorce practices like Collaborative Divorce and mediation, I’ve seen the impact of each process on clients and their families over time. Here’s a rundown of the four most common types of divorce:
Do It Yourself
An uncontested divorce is often called a “kitchen table divorce” because of the image of a couple sitting down together to fill out the paperwork. At its simplest, a do-it-yourself divorce can be accomplished by filling out the necessary forms from your local family court or from an online source. Although I recommend everyone have legally binding documents reviewed by an independent attorney, an uncontested divorce can be done without lawyers. It helps if your communication with your spouse is strong, and you feel like you both have access to and knowledge of the particulars in your marriage. In other words, you have equal bargaining power.
Pros. An uncontested divorce is usually the fastest way to dissolve a marriage. Depending on where you live, it could be as little as six months. It’s also the most affordable option. Your out-of-pocket costs are low, mostly related to the several hundred dollars to file the required documents in court. You have a lot of power and control in this model.
Cons: Unless you agree on everything with your spouse — and I mean everything — a kitchen table divorce may not be your best option. You need to be aligned on each aspect of splitting money and property, custody of children, and spousal support. You might be tempted to give away the farm just to get out of the marriage. You might feel at a loss for what to expect. This is when legal counsel is recommended. Family lawyers can help you finalize the details. You can still have an “uncontested” divorce, which just means that you are not fighting about the issues and you have an agreement ready for review and approval by the court.
Another out-of-court option is mediation, which involves both spouses meeting with an expert in conflict resolution. Mediators are most effective in cases where there’s not a lot of property to split up or assets to distribute. I’ve been a mediator for many years, and I find that it works best when both parties are on equal footing in the relationship in terms of asserting their individual needs. Mediations are harder if there’s a power imbalance, which in many marriages there is, whether subtle or overt.
Pros: Mediation lets you talk about issues together, which gives some people a sense of being heard or a feeling of closure. It mostly avoids the bitter battles that you often have with a litigated divorce. It gives you more power and control and the fees are modest.
Cons: Mediators can’t provide legal advice or counsel you on financial issues. Because you should never sign a legal document without the advice of a lawyer, you still need to have an expert look over your agreement.
A litigated divorce — also called a contested divorce — is often the worst experience for everyone involved. When a couple can’t decide on how assets should be divided, the amount and duration of spousal support, and the specifics of child custody and visitation, they and their lawyers head to court. Once you’re there, 90% of the cases settle eventually, or it’s an all-out battle.
Pros: If you are facing imminent physical or financial harm, then it is often necessary to get the court involved for protection. If you cannot speak on your own behalf, or if you are a victim of serious domestic violence or abuse, then the court may be your best option for relief.
Cons: A litigated divorce isn’t just hard on you and your spouse. Your children bear the brunt of it, especially if there is a custody fight. Your extended family and your circle of friends feel caught in the middle. For everyone involved, it leaves wounds that may never heal. By its adversarial nature, it can become a bitter process. There really are no “winners,” even if you feel like you’ve gotten more out of the judgment than your spouse.
I often describe Collaborative Divorce as “mediation on steroids.” It combines the non-confrontational nature of mediation and the straightforward process of an uncontested divorce, but with support. You and your spouse have lawyers who each represent your interests, but the goal is to reach a durable solution that works for you and your family. This is done without going to court. In fact, if either party threatens legal action, the process will end and your lawyers will withdraw. You will then have to hire new litigation counsel. The point of a Collaborative Divorce is to agree together on a resolution that helps you move on with your lives with some hope and dignity. Your lawyers file all the paperwork, and in many jurisdictions you do not have to set foot in a courthouse.
Pros: Collaborative Divorce is a personally empowering process, not a lawyer-dominated process. You and your spouse set the agenda and decide your priorities. The team — which includes mental health professionals and, when necessary, a financial neutral, along with your collaboratively trained lawyers — guides you through the necessary steps. The team is there to help you feel safe and secure throughout this often disorienting time. If you want to be civil with your ex or learn how to be an effective co-parent, consider the Collaborative Divorce model.
Cons: The main “con” of a Collaborative Divorce is the “disqualification clause” which means that if one of you decides to leave the Collaborative Divorce process, then the process ends and you each need to find new lawyers. While this may sound tough and expensive — and it is — the disqualification clause is also the glue that binds the team together. Preventing the lawyers from going with you to court actually allows the process to be more transparent and to keep the lawyers from reverting to their adversarial training. Nothing you say during a Collaborative Divorce will ever be used against you. No one wants to see a Collaborative Divorce process fail, which is why it is voluntary and self-selecting. It is also why we use our mental health colleagues to gauge the appropriateness of the process to the individuals involved.
Divorce is never easy. But with Collaborative Divorce, you are in charge of the process, the priorities, and the timing of your divorce. You decide what is important to you, and you are encouraged to take ownership of the solutions together. This attitude and this process are game-changers for divorcing couples and their families.
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