When a marriage breaks down, the parties know is they want a divorce, but they are unaware of the different methods available to them to make that happen. At Paula Lock Smyth Law Offices, we begin our representation by explaining to our clients what their options are and how mediation, litigation, and the collaborative divorce process work.
Litigation is the traditional approach to getting a divorce. It is also the most contentious and adversarial process of them all. It begins with one party filing a petition in court citing the reason they want a divorce. The spouses are pitted against each other as they each have their own attorney who presents evidence to the court on each issue that needs to be decided, such as division of assets, child custody and support, and any other disputed issue.
Often, what may have started out as a somewhat friendly divorce turns ugly, polarizing friends, family members, and even the children’s teachers as they are subpoenaed to court and asked to testify in ways that may harm one or both of the spouses. Any “dirty laundry” or family secrets usually are exposed to the court, everyone in the courtroom, and possibly to the general public.
This is also the most expensive method of divorce. Each side pays their attorneys, expert witness fees, child custody evaluation expenses, the cost of psychological evaluations, financial advisors’ fees, private investigators’ fees, costs of discovery and depositions of witnesses, plus court costs. There is no end to the bitterness and the expense of a contested divorce.
This is part of the litigation process. In most cases, the court orders the parties to participate in mediation before a final hearing is scheduled. Sometimes, the Judge will order the parties to mediation before temporary hearing too. During the mediation, each party meets with their own attorney in separate rooms as opposed to sitting at the same table together. A mediator, who both parties either agree on or the judge appoints if agreement is not possible, goes back and forth between the rooms, trying to bring each side toward agreement and to reach a mediated settlement agreement. The mediator is a neutral third party, whose job is to facilitate agreement between the parties. If an agreement is reached at mediation, the parties sign a binding Mediated Settlement Agreement, the terms of which are drafted into a Final Divorce Decree.
A collaborative divorce is the most civilized approach to divorce. Each party is still represented by an attorney, but together they select team members who help them agree on their family’s issues. Team members may include mental health professionals, financial professionals, and other experts. We set up a series of meetings where all participants, including the spouses, are in the same room to discuss the issues and express each person’s goals. The hurdles of overcoming the emotions of a divorce and providing for a future of hopefully harmonious co-parenting and financial stability for both spouses are achieved with a minimum of turmoil and chaos. Once a Collaborative Settlement Agreement is reached, it is translated into a Final Decree of Divorce or sometimes an Agreement Incident to Divorce and a Decree.