Four Divorce Options Reviewed by Linden Family Law Attorney
If you’re considering divorce, you need to know the four general divorce options: Do-It-Yourself, Mediated, Collaborative, and Litigated.
There are upsides and downsides to each one.
Do It Yourself Divorce
Divorce is complicated, financially and legally. In a do-it-yourself divorce, you could easily make mistakes, and many of them would be irreversible because they’d be written into a legally binding document.
Admittedly, there is just one scenario where it might work: in a case where the marriage was brief (say, under two years), where there are no children, there are little or no assets or debts to be divided, the two parties have comparable incomes and there’s no alimony to be settled. In cases like that, a do-it-yourself divorce could be accomplished quickly and with little expense. Nevertheless, we highly recommend that each party hire their own separate attorney to review the final documents.
In this option, a couple that’s divorcing works with a neutral mediator who helps both parties come to an agreement on every aspect of their divorce. The mediator may not necessarily be a lawyer, but he or she must be well-versed in divorce and family law. Also, it’s crucial that the mediator be neutral and not advocate for either party. Both parties will still need to hire their own individual attorneys in this process, who will work during the mediation and the final agreement.
There are pros and cons to be weighed when deciding whether mediation will work for you.
Divorce mediation may:
- Lead to a better long-term relationship with your former spouse, since you will not “fight” in court.
- Be easier emotionally on the children, since the proceedings may be more peaceful
- Lead to a quicker agreement
- Lead to fewer expenses.
- Help you be more in control of your divorce, since you are making the decisions, not the court
Divorce mediation may also:
- End up costing more. If negotiations fail, you’ll need to start over.
- Be unduly favorable to one spouse. If the mediator lacks experience or is biased toward your partner, the outcome could be unfavorable for you.
- Result in an agreement that’s poorly drafted and can be challenged.
- Lead to legal complications. Any issue of law in the agreement will still need to be ruled upon by the court.
- Fail to uncover all assets. Since all financial information is voluntarily disclosed and there is no subpoena of records, your partner could conceivably hide assets.
- Give an unfair advantage to a dominating spouse if the other one tends to be submissive.
Our concern with mediation is that the sole goal of the mediator is to get the parties to settle on an agreement—any agreement. Note that the mediator cannot give any advice. All they can do is try to get you to agree. Unfortunately, not all agreements are fair agreements. So unless both parties can be quite reasonable and amicable (and it’s not likely in a divorce), we believe that mediation is not usually a good option for most couples.
With this option, couples agree to work out a settlement without going to court.
Each partner hires an attorney who has been trained in the collaborative divorce process. The attorney’s role in this type of divorce is very different than in a litigated divorce. In a collaborative divorce, each attorney advises and helps their client to negotiate a settlement. Each spouse meets with their attorney separately. Then you and your attorney meet with your partner and his or her attorney. Other neutral professionals, such as a divorce financial planner or a therapist, may also help to guide the divorcing couple with finances, child custody, and other difficult issues.
At the start of the collaborative process, you, your partner, and your respective attorneys all must sign an agreement that says that both attorneys will withdraw from the case if a settlement is not reached or if litigation is threatened. So, as with a mediated divorce, you and your partner would have to start from scratch and find new attorneys.
On the pro side, the process can be much quicker and less expensive than traditional litigation—if the collaborative process works.
On the con side, however, we have found that the collaborative divorce option doesn’t work well in divorces involving complicated financial situations and significant assets. In a collaborative divorce, just as in mediation, all information on income, assets, and liabilities is disclosed voluntarily. In many households, the husband holds the “purse strings” and the wife is unaware of the details of their financial situation. When this kind of inequality exists, the door can be open for the husband to hide assets. Many high-net-worth divorces involve businesses and professional practices where it’s quite easy to hide assets. And the issue of valuation of assets and liabilities can be very contentious.
So, ultimately, we recommend that you do not use any of the first three options (do-it-yourself), mediation or collaborative divorce) if:
- You suspect your partner is hiding assets/income.
- Your partner is domineering and you have difficulty speaking up and voicing your opinion.
- There is a history of the threat of domestic violence (physical or mental) towards you or your children.
- You or your partner have a history of drug or alcohol addiction.
This is the most commonly used option. Keep in mind that a litigated divorce does not necessary end up in court. In fact, in more than 95 percent of cases, an out-of-court settlement is reached.
Why are litigated divorces even needed? It’s because divorce is usually not desired by both parties, but by only one. That, by its very nature, creates an adversarial situation and often disqualifies mediation and collaborative divorce since those options rely on the full cooperation, and voluntary disclosure of finances, by both parties.
If you are starting out with an adversarial and difficult emotional situation, why take the risk of using collaboration or mediation when the odds are they might fail, wasting your time and money?
At the same time, you do not want to litigate your divorce with an attorney who is overly combative, ready to fight over every issue. An overly contentious approach only prolongs the pain, increases your legal fees, and is emotionally harmful to everyone involved, especially the children.
You want your attorney to be a highly skilled negotiator.
You need an attorney who will always strive to come to a reasonable settlement with the other party. There may come a point, however, if the other party is completely unreasonable, were going to court—or threatening to do so—might be the only way to come to a settlement.
If you do end up in court, relationships can become very hostile. Up to that point, both attorneys were negotiators. But once in court, their roles change. Negotiation and compromise are pushed to the background. The new job is to “win” and get the best possible outcome for the client.
This is all happening before a judge who knows little about you and your family yet will be making the final decisions about your children, your property, your money, and how you will be able to live your life. That’s a big risk to take, and that’s why the threat of going to court is usually a good motivation to settle out of court.
A last note of advice: Weigh your options carefully. Every family and every divorce is different. If you feel that you will be able to work with your husband to come to a settlement, and if both of you are honest and reasonable, then mediation or collaborative divorce may be best. But if you have doubts, it’s good to be ready to take the option of a litigated divorce.
Consult with our Linden NJ Divorce Attorneys to discuss your personal case
At Edward S. Cooper ESQ, Law Firm, our experienced team of divorce lawyers represents clients across Rahway, Clark, Roselle, Roselle Park, Garwood, Elizabeth, and throughout Union County, Essex County, and northern Middlesex County in all custody and relocation cases.