What process do you want to use to go through this transition in your life? How do you want to go about the divorce process?
When you are facing the prospect of terminating your marriage, the most important questions you need to ask yourself are: What process do I want to use to go about this and what will be the consequences of my decision? How will my choice impact me and those I care about the most?
My experience with the various options:
The kitchen table approach is for the do-it-yourselfers in the crowd. We as consumers are now blessed with easy access to all sorts of information that only a short time ago was the exclusive property of trained experts. This is so in virtually every professional field, not just the law: your plumber, your doctor, your auto mechanic, even your clergy person possesses special knowledge that is now only a “google” click away. However, you must ask yourself if you will feel comfortable and safe applying this online advice without assistance, and whether you can "do-it-yourself" in a meaningful and efficient fashion.
Mediation is certainly an alternative for you to consider when you are facing divorce. In the field of matrimonial relations, a mediator is usually an attorney or family counselor trained in divorce issues. The mediator acts as a neutral facilitator, assisting as a couple faces the issues they need to resolve to successfully terminate their marriage. A mediator is not a judge. A mediator does not decide for you. A mediator facilitates communication and makes sure each side understands the position of the other, and that full information is available so that any decisions reached are meaningful and practical. A neutral mediator will not provide legal advice. A mediator will encourage you to seek the advice of your own legal counsel. A mediator can record your mediated agreements; however, the mediator will not prepare the court-required pleadings for your Dissolution.
In the Collaborative Divorce process, each spouse has an attorney trained in the Collaborative methodology. I am a trained family law mediator, as are many collaborative attorneys, because mediation skills are used in the Collaboration Divorce process. During that process, each spouse has his or her own advocate to provide legal advice and advocacy as the process unfolds. The Collaborative Participation Agreement defines the role of each Collaborative attorney and is the bedrock of the Collaborative Divorce. (The term Collaborative Divorce is actually a misnomer, because the Collaborative Divorce Process concludes with a Dissolution, not a Divorce.)
If you hire an attorney to represent your interests as you approach divorce and you have not signed a Collaborative Participation Contract with your spouse and your spouse’s attorney, then you are not doing a Collaborative Divorce. If your attorney says that he or she will work "collaboratively" but without the signed agreement, it is not a Collaborative case; you are being involved in a traditional attorney negotiation. Without the Collaborative Contract your attorney can still file papers in court. But you and your spouse will not be in that safe place where you can speak of options and be free of “my way or the highway” proposals. With a signed Collaboration Contract, your attorney is casting his or her hat into the settlement ring with you; not playing a game of chicken, trying to be the last one to blink.
Traditional divorce litigation is for those individuals who feel the need to fight it out in court. Those who choose to litigate have been led to believe that they can only get what they deserve by having their day in court. The problem is, once they get to court, they have spent inordinate amounts of time and money to tell a story which is usually in large measure irrelevant to the decision maker. The lawyers are mere mouthpieces, advocating to a judge who will attempt to satisfy both sides and in the long run satisfy no one. What the children of divorcing couples want the most is for their parents to stop fighting. Litigation will never end the fighting. It becomes about the fight, not the solution.
Collaborative Divorce – The Option I Recommend
Collaborative Law offers a new paradigm focusing on you, the client, rather than the lawyers and the traditional adversarial legal model. After practicing conventional divorce and family law for nearly 35 years, I am so convinced of Collaborative Law’s superiority that I have now made it the total focus of my practice.