Continuum of Options in Separation and Divorce
For almost everyone, a separation or divorce can be a very emotional time. Many books have been written about how and what to tell the kids, financial planning after divorce and how to file your own divorce papers.
The most important choice you make may be the way you are going to approach the separation.
Use the information below like a map, to find yourself and your spouse in one approach or combination of approaches. Each jurisdiction has different rules and some details described here may not be required where you live but most places have some version similar to this. The terms “husband” and “wife” are used but most of these options are also available for separating partners, unmarried parents, and others in an intimate relationship.
“Kitchen Table”: The couple negotiates the contents of their Divorce or Separation on their own, without substantial help from professionals. In order to have a legally binding document, after negotiating on their own, one spouse hires an Attorney to draft the documents and the other spouse hires another attorney to review the documents. This approach is appropriate when there is little or no conflict, no complex issues, and the relationship dynamics are balanced and safe so that both parties are comfortable negotiating for themselves. Tax consultants, business or real estate appraisers, and/or financial professionals may also be quite helpful for couples working together on the terms of their agreement. Emotional support can be provided by an existing therapist, minister or trusted friends and family.
Legal Coaching: For those who need a little more help in resolving issues, but can still negotiate most issues on their own, Legal Coaching may be an option. The couple seeks legal advice for only certain issues. Legal Coaching may be provided in conjunction with interdisciplinary mental health professionals (generally when one or both spouses feel the need for emotional support) or with a neutral collaborative financial professional in evaluating various financial options, and to coach them through the financial issues of the divorce process. Attorneys must still draft the final agreements in most places.
Mediation: In Mediation, a neutral third party – the mediator – facilitates the discussion and supports both parties in their work toward agreement. Mediators are specially trained and experienced, and may be attorneys or non-attorneys. Both parties meet together with the Mediator at the same time, usually face-to-face. Once agreement is reached, the terms of the agreement are communicated to attorneys so they can be incorporated into binding documents. Sometimes, both spouses and both attorneys meet with the mediator in a five-way conference to review the details of the mediated agreement and to discuss legal concerns, since in many places attorney and non-attorney mediators are prohibited from giving legal advice. The attorneys work together to draft the documents to incorporate the agreements made in Mediation.
Mediation is especially appropriate when there is low to moderate conflict, where the parties feel comfortable meeting together with a mediator to negotiate the details of their separation, and where parties want the support of a neutral facilitator. A skilled mediator can also work with high conflict situations and mediation can be especially helpful for de-escalating conflict. Mediation is private and confidential.
Collaborative Process: The husband and wife are each represented by a Collaborative Attorney throughout the process and all involved – parties and attorneys - commit to working toward mutual agreement, to sharing information openly, and to communicating respectfully. If the parties decide to litigate, the attorneys must withdraw.
In the Collaborative Process, an interdisciplinary team may be used, to bring in knowledgeable professionals (such as CPA, business appraiser, child specialist, etc.), by mutual agreement, to advise parties about financial assets, taxes, children’s issues, real estate or business evaluations. Parties may also have divorce coaches who are trained therapists who work to help them address emotional issues.
The Collaborative Process is especially appropriate when there are complex issues, and/or when one or both parties would be better served to have attorney/psychologist/financial advice and negotiation help throughout the process. It is well-suited for either low- or high-conflict divorces. The Collaborative Process is private, confidential, and provides maximum support for creating long-lasting solutions.
Cooperative Divorce: In Cooperative Divorce, attorneys work to settle the case outside of court but without the security of the collaborative commitments. If the case doesn’t settle, the same attorneys will litigate on behalf of their clients. In effect, in this approach, attorneys are simultaneously discussing settlement while also preparing for court.
Conventional Attorney Representation and Litigation: This model is well known. Attorneys present your case to a judge who makes decisions for you and your family based on the information provided in court. While it is necessary to hear a judge’s decision in some cases, it is commonly known that over 95% of all cases filed end up being settled without the judge.