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Your spouse has announced they want a divorce. Or maybe you’ve decided that you have no other choice. How does a divorce happen?
The process you choose has a huge effect on how the divorce will go, how long it will take, how painful it will be, and how much it will cost. In this blog post, I will give you a brief overview of the divorce process options so that you can begin to think about the direction you’d like to go.
In California and some other states, you can attend a free workshop called Divorce Options. This three-hour workshop packs in a ton of information about the divorce process and the law, which vary in different states. It also includes information about how to tell your children, and how to make the divorce easier for them.
Once you have all the information about various divorce processes, you can make a thoughtful decision about which process is the right one for you and your family.
Without this valuable information, if you don’t make a choice, people often end up in an adversarial process. In California, litigation is the default process. In other words, you need to choose another process, and if you don’t, your divorce will involve the court in a decision-making role, and you won’t have a confidential process.
Also, wait to interview or retain an attorney until you’re clear about which process you’d like to pursue. Often people rush out to hire a divorce attorney recommended by a friend. This attorney is going to be a very important person in your life, so choose someone who feels like a good fit. You will want advice, guidance, information, and someone you can trust.
I recommend that you interview more than one attorney but wait until you are clear about which process you will be using as attorneys often have practice specialties in one process but not all.
Here are the options:
1. A do-it-yourself divorce. Also called a kitchen table divorce, may be a good choice if you don’t have property, own a business, or have children. If you have been in a short-term marriage and your divorce is amicable, you may be able to work out the details yourselves and submit the forms to the court. The drawback is that you won’t have the information you need about the law.
This process is best for very simple divorces where there isn’t much to negotiate or divide. Nolo Press has a do-it-yourself-divorce book that can walk you through all the steps.
2. Mediation. Mediation is a very common way to settle a divorce. A mediator is a neutral facilitator. He or she will facilitate your conversations but won’t be able to give you advice. Some mediators are lawyers, and others are therapists or laymen. Because not all mediators know the laws, you should also hire a consulting attorney. That lawyer can advise and educate you about the law and will ensure that you understand your settlement before you sign anything. Many people consult with their attorneys between mediation sessions to prepare for the next session.
One advantage to mediation is that it is a confidential process, and your settlement can be kept confidential and not become part of the public record. Mediation works well when you and your spouse can communicate respectfully and honestly. You will need to feel confident that you can advocate for yourself and your needs. If one of you is overwhelmed with emotion or doesn’t have a clue about finances, mediation might not be the way to go. You may need more support.
In some areas, professionals are offering a hybrid called Integrative Mediation. In this scenario, there are two neutrals, such as an attorney and a therapist or financial specialist. This provides more support to you as you navigate the divorce process.
3. Collaborative Divorce. Collaborative Divorce has been around since the mid-1990s but has recently become much more well known. When mediation doesn’t provide enough support, consider a Collaborative Divorce. In a Collaborative Divorce, each of you has your own attorney trained specifically in this process. You may have others on your teams, such as Collaboratively trained divorce coaches or financial specialists.
You have much more support in your negotiations, as the attorneys join you and your spouse at the meeting table to assist you in finding the resolutions that best work for each of you and your children. In a Collaborative Divorce, you and your spouse are in control of the decisions you’ll make, and the law is a factor, but not necessarily the determining factor. As long as you understand the law, you can make decisions outside of the law if they fit your family better. You can “think outside the box” to find win-win solutions.
The coaches help with communication and emotions, and the neutral financial specialist helps you put together your disclosures, which are required by law. Collaborative Divorce is a confidential process, like mediation, and a potentially amicable process.
You and your spouse sign an agreement not to go to litigation, and not to threaten it. If you do leave the Collaborative Process, your professionals will all withdraw, and you’ll have to hire new professionals. Collaborative Divorce is a good option if you need support, guidance, and advice, and you don’t want to take your divorce to court.
In some areas, you may hear of a “cooperative divorce” or a settlement-oriented divorce. In this process, the attorneys take a larger role in bringing your divorce to a final settlement, often negotiating on your behalf. It is not a confidential process.
4. Litigation. Some families need an outside decision-maker when they are unable to come to an agreement in any other way. Unfortunately, the outcome is often a “win-lose” outcome, and you may find yourself going back to court over and over. You will each hire an attorney who will fight for you to win in court. It is the most adversarial process. Litigating attorneys often don’t work together cooperatively to come to a settlement. Their focus is on getting the "best deal" for you, even when the outcome may not be ideal for your children or family.
When your divorce is litigated, you are putting all of your decisions into the hands of the Judge, who is guided strictly by the law. Your attorneys make the most convincing case they can as they advocate for you, the client. The judge doesn’t know your family but is making big decisions for you, and can only use the law as a basis for his decisions. And don’t expect the judge to provide “justice” or to punish your spouse. This kind of high-conflict divorce is hard on you and your children. Avoid it if you can.
Litigation is probably the most costly process because you are in fact preparing for trial, although only 3-4% of divorces actually go to trial. The rest settle on the courthouse steps, at the last minute.
These are the four main process options, and in many areas, you will find some variations.
When you decide how you want to proceed, ask the attorney you interview these questions:
- Do you specialize in family law? How long have you been in practice?
- Have you been trained in mediation or Collaborative Divorce? If so, how many cases have you done successfully?
- What percentage of your practice is mediation, going to court, and Collaborative Divorce?
- Have you worked with my spouse’s attorney in the past? How is your relationship with him/her?
- What are your fees?
In addition to the answers you get, ask yourself how it feels to be in the room (or on Zoom) with this person? Does she talk too much? Is he too aggressive? Does she welcome your questions and answer them directly? Is he interested in your intentions and desires? Does she seem to want to find a way to meet the needs of your whole family?
One last word of advice:
Take some time to settle down emotionally before starting a legal process. Work with a therapist, clergy, or divorce coach to work through your feelings. They can also work with you about how to tell your children and help them adjust.
Once your emotions have calmed down you will be able to think more clearly and make more well-thought-through decisions. This is all about self-care.
Start with self-care.
© Ann Buscho, Ph.D. 2021
