Tuesday, August 18, 2009

Divorce - Civil Style

There are basically three paths to divorce in America: litigation, mediation and collaborative.

Litigated divorces are where each party hires an attorney with the objective to get the best deal for themselves. These are cases we usually hear about when our friends complain how the attorneys fought over every detail and the case ran on forever, costing nothing but money and aggravation. "The case was so bad our kids take turns hating us" has been uttered as well.Perhaps my all time favorite example of a bad divorce is in the movie War of the Roses. I remember watching the movie with my then-wife, thinking that this could never happen in real life. Wrong! It can and does if you allow it.

Mediation may be considered as the opposite extreme. Usually the husband and wife seek resolution through the use of a neutral third party called a mediator. That person can be an attorney, mental health professional or someone simply trained in mediation. Each state has its own statutes as to who can practice. Please note that if the mediator is an attorney that they are not acting as an attorney in this instance and will disclose that fact to you. The mediator will guide you through a series of issues and allow you to come to your own agreement. These issues will include child support, spousal maintenance, parenting plans and division of assets. Then a memorandum of separation will be prepared and each party should have it reviewed by their own attorney, who is acting in that capacity.This path works well when both spouses are emotionally healthy and there have not been instances of emotional or physical abuse. Quite honestly, when domestic violence has been part of the relationship most mediators will suggest that you consider litigation.

The next and perhaps newest path is Collaborative with a capital"C". Collaborative divorce combines the best practices of mediation with each party having an attorney representing them during negotiations. The goal is to achieve a workable solution for both today and tomorrow. The big bright line that makes Collaborative divorce different is that each party signs agreements that state, should the negotiations fail, it is understood that the attorneys can no longer represent them nor be called in to testify in litigation. In addition, all documents produced and discussions had during the process are confidential and cannot be used during litigation. Often in the Collaborative process, besides having attorneys, each party may have a mental health professional on their side to act as a coach and keep them focused on what is important to them and possibly avoid the petty squabbling that can prolong litigated divorces. If there are minor children then a child specialist may be involved to offer opinions on what is the best route for the children and express some concerns.There may also be a neutral financial expert who will meet with both parties, gather all the financial information and help draw up scenarios for support and distribution of assets. The financial person will meet with the clients and also the attorneys and other team members. By agreement, once the divorce is settled, the financial person cannot represent either spouse again.Each spouse also agrees to provide full and complete information, and failure to comply can result in disqualification and the process will end. Court orders are not sought in Collaborative divorce.You can see that each side is investing time, money and emotion into this process. They're making the informed decision, knowing that if the proceedings break down they'll have to start over with new attorneys -- without being able to use any information that was disclosed. This is the crux of the issue.

Often in a litigated case the attorneys will say that they will work collaboratively with opposing counsel. They often do this in order to lessen tensions, but unless there are the disqualification clauses this type of collaboration is not collaborative!

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