If you are considering dissolving your marriage, you have a number of options to consider. This page will introduce you to several of those options. It is intended to identify the alternative methods so that you may further investigate the process best suited to meet your needs. There are also hybrid approaches which incorporate portions of the various options.
Mediation is a process where both parties confer with a single person – the mediator – who attempts to assist the parties in achieving a settlement of the issues in their divorce. The parties may or may not choose to consult with their own attorney. The mediator may, or may not, be an attorney.Mediators do not provide legal advice. The mediator’s role is to help facilitate a settlement that meets the satisfaction of both parties. Generally, mediators will assist the parties with the required court forms, and draft the Marital Settlement Agreement or Judgment if the parties achieve a settlement.
The mediator does not act as either party’s attorney. Therefore, unless you know the complete details about the marital assets, or your spouse is completely forthcoming, there is a risk associated with this method. The advantages are that the cost is generally less than traditional dissolution methods. If settlement is not achieved, then litigation will be necessary. This alternative is risky when one spouse is less financially sophisticated than the other spouse, and when one spouse has the capacity to intimidate the other. This method is not successful unless the parties trust each other and both desire to be fair. The other difficulty is that when Mediation fails, the resulting dissolution is often more contested because issues have been very clearly defined and each party has reached a position of impasse. It is also risky because although it may initially appear to be less costly than the traditional dissolution method, there is significant cost involved for the mediator. When the Mediation is not successful, those cost will go to waste and ultimatelly will be in addition to the cost of a Family Law attorney.
As a general rule, the reasons that cause people to reach the inescapable conclusion that dissolution of their marriage was inevitable are the same driving forces that lessen the chances of successful mediation. At the same time, where there are two reasonable people with no pre-existing agendas relating to the reasons for divorce, and the case is simplistic in nature, Mediation is often a reasonable choice and will be successful. PBA offers Mediation services.
As a general rule of understanding, Collaborative Law is for more complex cases, as opposed to Mediation, which should be used in more simplistic cases. Collaborative Law is a process where the parties agree to cooperatively work together to achieve the best result for the family as a whole. You agree not to go to court over your disputes. In the collaborative model, each party is represented by an attorney, and a coach (mental health professional). There is also a neutral financial professional (CPA), and, when needed, a child specialist. The professionals agree that if the collaborative process breaks down and either of the parties decides to go to court, they will withdraw from the representation, and the parties will need to retain new attorneys and other professionals. In the collaborative model, you are represented by an attorney. The attorney is there to explain the law to you, and to advocate your interests within the Collaborative Team. Collaborative Law is advantageous in that the parties learn to work together to achieve an agreed result. In doing so, they develop skills which will enable them to deal with each other after the divorce is final. It can be quicker and less expensive than the traditional dissolution method. However, if the process breaks down, the parties must then start over, hire new attorneys, and begin with the traditional dissolution method. This process is generally not successful unless both parties desire to achieve a fair result. If either side has a high degree of hostility, thia process may not be appropriate. PBA offers Collaborative Law services.
Traditional Dissolution Method
With this approach, one or both parties retain an attorney. The attorney represents the interest of the client for a fee. There is a misconception that this methodology frequently causes divorces to evolve into a “War of the Roses” scenario. The fact of the matter is that most cases settle. Some clients never see the inside of a courtroom. There are four people who control the direction, cost, and duration of the case – two parties and two attorneys. If both clients select attorneys who are reasonable and constructive in their approach, the case has a very high likelihood of an efficient and amiable resolution. Consistent with this method, lawyers can explore amiable settlement through the use of private settlement judges, four-way settlement conferences, and the use of joint experts and other creative proactive approaches. If the case does not settle, the parties go to court (or to an agreed private judge) to litigate the issues in the case. These issues can include child custody, child support, spousal support, asset division, domestic violence, and an award of attorney’s fees. Often experts can be required to help prove your case, for instance, when you need to prove the value of a business. PBA offers traditional dissolution litigation services.
There are many readily available books about how to represent yourself in a divorce. The primary benefit of this approach is that there are no attorney or expert fees. The disadvantages of this approach include a number of things that may be done incorrectly (or missed entirely) with potentially significant and long-term costs and risks. You will not have an attorney assisting you through the maze of court rules and forms, and, more significantly, with the experience and know-how to identify issues and ask the right questions to protect your interests. Before selecting this option, you should be confident that you know the law, the community assets and debts involved, and that you trust your spouse to be fair in the dissolution process. There are times where a client will retain PBA after attempting to represent themselves in the divorce action, and in certain instances the damage that has already been done by the self-representation is difficult to rectify. Except in extremely simplistic cases, PBA does not recommend self-representation.
Summary of “Divorce Options”
The significant advantage of a dissolution proceeding involving litigation services of two attorneys is that in the event all issues are not agreed upon, you do not “start over” with an entirely different process. You finish that process with your existing attorney and with any of the issues that have been resolved memorialized. The trade-off occurring in our modern society is that court systems are often congested and the costs of the traditional litigation approach continue to escalate for a variety of reasons.
Mediation and Collaborative Law offer the allure of lessened fees and costs in a less litigious environment. The difficulty with these approaches is that in difficult and complex cases, the process is not always successful and actually results in additional litigation. There is no “one” answer or a “correct” answer for any prospective individual seeking a dissolution of their marriage. It is a matter of properly evaluating your particular circumstances, the personalities and facts in the individual case, and making a decision that is best for you. PBA, as part of their initial consultation process, considers all of these options and makes representations as to what is in your best legal interests. A significant majority of all PBA cases follow a traditional litigation mode for the reasons contained in this explanation. We do offer both Mediation and Collaborative divorce under certain, specific circumstances where they are warranted.