You have decided that you and your spouse need to divorce. What next? The first reaction you may have is to call a lawyer. But before calling for professional help it is good to understand some of the options available.
There is a spectrum of options when pursuing a divorce and while there can be many combinations of available options the basic routes are litigation, negotiated divorce, and mediation. Below I briefly outline three available options and the pros and cons of each.
Litigation is a process in which each spouse typically hires an attorney. Litigation commences when one of the attorneys files a summons and then serves the summons on the other spouse. The parties then appear in front of a judge. When you go in front of a judge for the first time this is usually called a preliminary conference. During the preliminary conference immediate concerns such as temporary child support and temporary spousal support are addressed as well as other issues in dispute. Exchange of discovery (discovery is the process where both parties exchange information) is arranged and court appearances are also scheduled at the preliminary conference. A litigated divorce is a good option if there has been domestic violence (defined as any type of physical or emotional abuse in the relationship). Litigation is also necessary when no progress can be made by other methods, when one side is being dishonest, or if an emergency decision needs to be made by a judge. The downsides of litigation are that it is very expensive, it can take a long time for the judge to reach a decision, and the couple is ultimately ceding decisions about their family to a third party.
Negotiated divorce is one of the most common routes to divorce. In a negotiated divorce each spouse hires an attorney. The attorneys then exchange financial information and settlement proposals. The attorneys negotiate an agreement on behalf of their client either over the phone, in writing, or during a four-way conference. A four-way conference is when the couple and their respective attorneys meet to negotiate a settlement. If the parties reach an agreement, a settlement agreement is drafted. The attorneys then file the final divorce documents (“judgement of divorce”) necessary for a judge to sign. Although a judge is required to sign off on the divorce agreement, one of the benefits of a successfully negotiated case is that the parties never have to appear in court. In some instances a negotiated divorce is not ideal. A negotiated divorce can sometimes be expensive, can inflame tensions, and can take longer than a mediated divorce.
Mediation is the process of using a neutral third party to facilitate the negotiation of an agreement between divorcing parties. Mediation seeks to build understanding between a divorcing couple so that they can make decisions about their future together. While divorce is never a happy time, a mediated divorce can help a couple feel more satisfied with their agreement and more in control of the process because a mediator does not make any of the decisions for the couple. Mediation is great for a couple who need to maintain a relationship after the divorce, such as when they have children together. When the mediator is an attorney, the mediator can give information about the law, but they will not give specific legal advice on how to resolve an issue. However, one benefit of having a mediator as an attorney is that the mediator can draft a divorce agreement for the parties to sign. The mediator typically requires the couple to each hire their own outside attorney to advise them on the agreement before signing. If the mediator is an attorney the mediator can then file the final divorce documents with the court once the agreement has been executed. Mediation is good option for divorcing couples who feel they can advocate for themselves and who want to have more control over their case. Mediation might not be the best route if there is a large power imbalance between the divorcing parties. Mediation should never be used when there has been any form of physical or emotional abuse.
Having a general understanding of the various legal routes to divorce will allow you to find an attorney who will best represent your interests by offering legal options that you feel comfortable with and are appropriate to your case. Because divorce cases can often change from beginning to end, having an attorney who is well-versed and experienced in a variety of methods can give a sense of security that your legal needs will be met no matter what changes may occur in your case. A good attorney will appreciate the time you take researching the various legal options. Additionally, having some general information before your initial consultation will help you understand what kind of attorney best fits your needs