Family Law and Divorce Options

Perhaps 50% of couples separate or divorce. Divorce has become a normal reality of life in America. As with other life transitions, you can decide how you will manage this major life change.

The end of a marriage or long-term committed relationship affects all of our relationships. Your choices will affect not only yourself, but also your children, your family, and your friends. It is a transition with important emotional, financial, and legal aspects. Whenever possible, all aspects — emotional, financial, and legal — should be addressed to support your long-term goals, your future, and the future of your children.

It used to be that you went to a lawyer, who would tell you about the law, make legal and factual arguments based on that advice, and conduct adversarial-style negotiations for you. If those negotiations failed, the lawyer would make arguments to a judge, who would make the decision. Although many divorce lawyers may still operate that way, nowadays, there are many more options, so you can pick the divorce process that best suits your situation and preferences. 

Divorce Process Options  Collaborative Divorce  Divorce Mediation  Litigation, Adversarial Negotiation, and Conventional Representation  Overview Comparison Chart of Divorce Processes

DIVORCE PROCESS OPTIONS — PERHAPS YOUR MOST IMPORTANT CHOICE

There are different ways of thinking about the divorce process. Lawyers often tend to think about divorce in terms of documents, legal procedures, and what the court might do. Counselors often tend to think about the divorce process in terms of emotions, changed relationships, or healing from the divorce transition. Financial professionals tend to think about divorce in terms of the long-term financial (including tax) repercussions. Although a Decree of Dissolution of Marriage (the document that officially ends a marriage) can only be granted by the court, that document can only be prepared following negotiations or a decision by a judge. Sometimes the negotiations occur after extensive court involvement; sometimes they occur in marathon-like adversarial negotiation sessions just before the trial. It does not have to be that way. The extent of court involvement, and the quality of the negotiations, is largely up to you — the parties as well as their lawyers. The same is true for other family law matters, including for non-marital relationships. If you are thinking about ending your marriage or other relationship, or if you have another family law matter, the first question to consider is which process among the options will best suit you and your family. In making your selection, pay special attention to your long-range interests.

When clients seek advice for divorce, most Seattle-area adversarial (litigation) divorce lawyers advise clients to file a petition with the court, which literally starts a lawsuit against the other spouse. Most lawyers then provide good advice to clients, but their primary tools in achieving results involve adversarial processes, posturing, and positioning. However, all that process, posturing, and positioning comes at an expense: despite good intentions, they  tend to increase anxiety and conflict, often unnecessarily.

The vast majority of divorcing couples do not want a lawsuit or additional acrimony. Most just want a life transition, advice on how to go about that transition, and a dignified resolution of the financial, emotional, and parenting (child custody and child support) issues. Most do not wish to add to the stress during an already-traumatic period, or to have a Judge make the most important decisions about their personal lives or their children. Most people do not want to have their most private affairs and finances be made public, which is what generally happens when the court is asked to make a decision, such as in a motion. Additionally, filing a lawsuit may actually limit or completely eliminate some of the settlement options that may be available if a court filing is delayed until final agreement is reached.

Even where lawsuits are filed, conventional wisdom is that about 95% of cases never go to trial and settle. But those settlements typically occur after expensive and burdensome court procedures have been employed. Often, by the time of settlement, a Judge or Commissioner has already made decisions that impact your future, and the settlement occurs after positional bargaining. There are many good reasons for settling — many more than litigating. And there are many different ways to arrive at the almost-inevitable settlement without starting with a lawsuit and filing motions with the court.

Why do many lawyers tend to automatically recommend an adversarial process? Due to their training, most lawyers tend to think of the change of a relationship in legal terms, and the court, legal rules, and positioning as the primary or best response to client concerns. American legal process is based on an adversarial model, on the theory that the truth can be discovered by a neutral judge or jury if both sides make their most vociferous arguments. Legal training and experience is training and experience in laws and adversarial legal procedures, and it creates good and excellent legal technicians who operate in a complex environment where a judge is asked to make decisions after hearing the strongest arguments from both sides. Much of the work that most divorce lawyers typically perform consists of preparing to go court or to trial — even though trial may be unlikely — and preparing and arguing court motions and making legal arguments. Also, since lawyers who litigate tend to see the worst situations, there is a natural tendency to assume the worst in every case. Perhaps surprisingly, most lawyers lack any formal training in mediation or dispute resolution skills, so they tend to always stake out positions and posture as they have been trained in law school and adversarial practice. If the only understood process is adversarial argument and adversarial-style negotiating, the only process that can and will be offered will be an adversarial process.

Legal training and trial experience does not give lawyers (or judges) the expertise or ability to address the non-legal aspects of a divorce — the important emotional and financial components — just as financial or mental health training does not give professionals in those fields the expertise to address the legal issues more than superficially. Most lawyers and judges have inconsistent exposure to financial and emotional concepts instead of formal education. Judges are restricted in rendering decisions that fit within boundaries that the law provides. The law generally does not care much about what may be important to divorcing couples — it cares about providing an opportunity to present a case, and rendering a relatively predictable result within societal norms that will appear adequate to other strangers based on the Judge's interpretation of the facts. The information that can be presented to determine those facts is limited to what is admissible under the Rules of Evidence. Each side presents evidence and arguments to “win,” but there is never more than one “winner.”

The reality is that people and their situations are more complex than laws and legal rules, and that the financial challenges required a careful approach. Many people seek to end a marriage or long-term relationship in order to end or limit conflict, instead of perpetuating it. Most people do not view a divorce lawsuit, with trial and court motions, or even preparing for trial, as a pleasant or positive experience. In fact, everyone is affected by the positions that are taken and presented during an adversarial process where each spouse tries to make a “best case” against the other. For many, this process can be distressing and emotionally damaging, as well as financially burdensome. When lawyers think about family law cases in legal and adversarial terms and limit the issues to those defined by law, it is easy for them to ignore the reality that after a divorce is concluded, former spouses and their children, their families, and their friends will continue to have a relationship and will always have memories; a relationship and memories that will be impacted by the adversarial process. Litigation can therefore not only be economically expensive, but costly in terms of its negative effects on relationships and emotional health.

While courts can and do provide binding decisions, it is our opinion that the traditional litigation model (which is all that conventional lawyers offer) is often not well-suited to separating or divorcing couples, because the structure of that model tends to escalate conflict. At the end, all divorce processes result in binding and enforceable documents; however, there are different paths to getting there. We encourage you to think carefully about what divorce process is right for you, because this could be one the most important decisions you make for your and your children's futures.

Fortunately, there are many options other than court to resolve disputes, including mediation, informal meetings, Collaborative family law, and arbitration. The predominant methods are:

Collaborative Divorce

Collaborative Divorce is one of our preferred dispute resolution process, because we believe it provides the best support for each spouse while simultaneously focused solely on reaching resolution. Collaborative Divorce is a process that honors each party's integrity and is suitable for many cases. It involves listening to you, working with you to identify the goals and priorities that are most important to you, and then working towards a reality-based settlement that is in alignment with your goals and priorities. A very cost-effective approach is to utilize the services of a small, coordinated, and trained team of professionals.  Each team member works in their own area of expertise, so the person with the highest skill provides the highest benefit in that area in the most cost-effective manner. The team normally consists of a Collaboratively-trained lawyer for each party, a neutral financial specialist, one or two divorce coaches, and a child specialist. At a minimum, all team members should have formal training in Collaborative Law and facilitative mediation, in addition to a substantive background in their own discipline. Often, team members will have substantial additional training and experience in facilitating divorce resolutions and working in Collaborative teams. The team provides the tools and information so the clients can make the best possible decisions for their futures. Other specialists can be brought in as needed.

The Collaborative Divorce process usually follows parallel paths. Most negotiations occur during joint sessions (sometimes called “four-way” meetings) with the lawyers and their clients. Other team members may also be present. At the first joint session, all sign the contract that creates the framework and safety for the Collaborative process, and under which all agree to work together to reach resolution without going to court. The contract typically requires both parties to fully disclose all relevant information and limits them from taking advantage of mistakes of the other. The contract also disqualifies the lawyers from going to court on any disputed matter. That frees up the lawyers to advocate for the clients in a manner that facilitates settlement and to provide guidance so that the clients can reach a negotiated resolution that truly meets the clients' needs. Disqualifying the lawyers from court ensures that the lawyers are fully committed to helping their clients reach a negotiated resolution.

To make the joint sessions cost-effective and productive, there will usually be homework between meetings. That homework will often involve working with individual members of the team. The couple meets (separately and/or together) with the neutral divorce financial specialist to work on the financial part. The couple works with the divorce coaches on communications styles and skills that may affect resolution, to gain confidence and skills on communicating what is most important. The team members all provide information to the others on how to best facilitate and work with the couple. The lawyers help their clients analyze issues, advise their clients concerning the legal and other options, guide their clients, advocate for clients within the team, and facilitate the discussions at the joint sessions. The goal is to provide the expertise and information to allow the couple to design a future that is as optimal as the circumstances allow, and to provide needed support to ensure that all important issues are safely raised and addressed.

The clients, not the lawyers, make the decisions based on what is important to them and their families. The lawyers counsel their clients and make sure that everyone has all necessary factual and legal information to make informed decisions, but leave the decision-making to their clients based on what is most important to the clients. The lawyers also make sure that all legal issues are covered, and prepare all necessary divorce documents. All are required to bargain honestly and in good faith, and to disclose all material information, while the lawyers assist in leveling any power imbalances in negotiations. Because everyone knows that court is no longer an easy option, there is a much higher commitment to reaching agreement. The goal in a Collaborative divorce is to reach a durable resolution. To achieve durability, the settlement decisions must feel acceptable or understandable tomorrow as well as today.

The Collaborative Divorce model is very different from the litigation model, and the lawyers need a skill set above that offered in law school or in normal lawyer on-the-job training. Collaborative Divorce is a different paradigm from traditional litigation-based lawyering, even for lawyers who normally settle their divorce cases. Accordingly, this model is rarely effective unless all team members have received specialized formal Collaborative Law training and mediation training, and preferably interdisciplinary team training. Additionally, experience and advanced training helps provide attorneys with a better skill set. Lawyers with training can be found at the websites for King County Collaborative Law (www.kingcountycollab.org) and the International Academy of Collaborative Professionals (www.collaborativepractice.com). 

Additional information is available on our Collaborative Divorce page and from the ABA Handbook for Clients and the IACP Collaborative Practice Knowledge Kit.

Divorce Mediation

This is another valuable process that offers client-directed outcomes.

In a mediation model, the parties approach their case with the goal of seeking resolution for divorce. Mediation can occur with or without attorneys present, and can have different formats and approaches depending on the training and inclination of the mediator and the preferences of the parties. Generally, both parties will be in the same room together with the mediator, and usually without attorneys. When successful (statistically, a majority of the time), the mediation results in a written divorce agreement and agreed court orders.

“Transformative” mediation is designed to help the parties have insights and reach deep resolution. Transformative mediation is a relatively new development in the mediation profession, and requires a highly developed and difficult to acquire skill-set by the mediator. It is practiced by relatively few mediators, but holds great promise, especially for divorces.

“Facilitative” mediation is the most common type of mediation, and uses techniques to facilitate a discussion between the parties with the goal that they will come to a resolution that is right for them, independent of legal rights. Facilitative mediation is a process that focuses on needs and interests instead of technical legal rights, and will almost always have the parties together in the same room with the mediator.  Facilitative mediation will often assist parties by having them work on communication and problem-solving skills during the mediation session. Mediation is a process that can work very well for many people, particularly those with less-complicated situations.

“Narrative Mediation” techniques may be used with both facilitative and transformative mediation. Narrative mediation focuses on modifying a story, based perhaps on a sharing of information. Because narrative mediation techniques can resemble some forms of mental health counseling, narrative mediation is often the preferred technique of mental health counselors. Narrative techniques are also often employed by experienced non-counselor facilitative and transformative mediators.

The primary disadvantage to facilitative, transformative, and narrative mediation is the limited support provided for clients. The mediator must remain neutral, generally may not provide legal or other advice, and there may not even be a requirement that important information be disclosed by the parties. The meetings are usually face-to-face without support for parties beyond that which can be provided by the mediator. We recommend that parties consult with their divorce attorney before and after most mediation sessions to ensure that they will cover all necessary issues, and have information concerning legal rights. Mediation almost always means that one or both sides voluntarily surrender some actual or perceived legal rights in the pursuit of what is most important. Doing so will almost always be necessary to settle any case, but it is important to know what those rights may be, in case they make a difference.

Mediation may not be appropriate where there is a significant imbalance in negotiating power, such as in cases of physical or emotional abuse, or if one of the parties feels intimidated by the other. Other processes, such as Collaborative Divorce, may be better suited to addressing significant power imbalances. If you are in such a situation but are considering mediation, it will be important to communicate your concerns to the mediator as soon as possible.

Because of their lack of training in dispute resolution other than court procedures, many lawyers are not very familiar with the facilitative mediation model, and even fewer are knowledgeable about transformative or narrative mediation.  When lawyers talk about “mediation,” they will usually be referring to an evaluative settlement conference where and adversarial methods are used, because that is the model of “mediation” that many lawyers use to settle their cases. At settlement conferences, lawyers typically try to demonstrate how their evidence and legal theories are better than the other's, thereby trying to sway the Settlement Master (usually called a “mediator”) towards their position. For that reason, settlement conferences are usually deployed only after preparing for litigation, because it can be difficult to make legal arguments and show evidence without that type of preparation. Sometimes, this style is also referred to as power-based or positional bargaining. In our view and experience, the settlement conference process can be highly adversarial, and, unlike true mediation, is part of adversarial legal representation with all its disadvantages for family law matters (see below).

Settlement conferences, or “evaluative” mediation, is the model most commonly practiced by lawyer-mediators in the Seattle area, where the mediator shares his/her perspective of how the court might view the legal and factual issues in the divorce, and will try to forge agreement based on the settlement conference master's views concerning the law and the facts. Those lawyer-mediators who are trained in both facilitative and evaluative models may use various hybrid approaches to help the parties reach agreement.

Litigation, Positional Negotiation, and Conventional Representation

This is the “traditional” lawyer model where the court may be involved in many phases of the divorce proceeding.

When both parties retain divorce lawyers who are settlement-oriented, it may be possible to reach a divorce settlement based on negotiation, usually using ad hoc methods and without involving the courts. This method of representation is sometimes referred to as “cooperative law” or “cooperative divorce,” although there is no generally understood definition for either term. There are a number of excellent attorneys whose personalities lend themselves to practice in this style. (For information on selecting attorneys, click HERE.)

When even one party or one lawyer is not settlement-oriented, the likelihood of keeping conflict contained is significantly diminished. In those situations, court-based procedures are generally used and the court may be involved -- in some cases quite extensively. In its essence, the litigation and adversarial representation model is oriented to allow a judge (or other judicial officer, such as a court commissioner) to make decisions after each party presents his/her case and tries to persuade the court, or to persuade the other party to capitulate on the same grounds. When a divorce case settles after using court-based procedures, it is usually based on similar adversarial criteria that a court would use, often after preparing for trial, and generally after each side makes arguments to “bolster” their own positions and weaken the other's. The assumptions in this model include that the spouses are not well-intentioned and need to be pushed to arrive at any outcome. There are formalized and expensive procedures for “discovering” relevant information (exchanging information), which are often onerous, unpleasant, and expensive.

Since perhaps 95% of litigated divorce cases actually do not go to trial, most cases that follow the litigation model are settled. Usually, this occurs at a settlement conference (often referred to by Seattle-area divorce attorneys as “mediation”) after the case has been prepared for trial. At the settlement conference, the lawyers will present the same type of information that would be presented at trial to a neutral third party. The neutral will generally be an experienced lawyer, a retired judge, or a sitting judge who will not hear the case. The third party will then try to persuade both sides to compromise, often based on that third party's view of the arguments of the lawyer and the law. Many divorce lawyers and settlement conference masters deem a settlement conference successful when a settlement has both parties feeling equally unhappy. Most of the time, this process does result in a settlement, defined as an agreement that results in the cessation of the current legal proceeding. When most lawyers refer to “mediation”, they are usually referring to these types of settlement conferences, rather than the type of mediation described above.

The primary disadvantages with settlement conferences are that they usually occur after parties have become entrenched in their positions, and decisions are generally made on the basis of the strength of legal positions rather than on what may really be the underlying issue or what may be most important to the parties and their futures. Not uncommonly, lawyers and parties take extreme starting positions at settlement conferences, knowing that they will need to compromise. Generally, both sides are pushed to compromise from their positions, with the result that both may feel resentment. Settlement conferences are often long (generally scheduled to last 4 to 8 hours or longer), and can resemble wars of attrition, where decisions are made during periods of stress and fatigue, causing ill-considered capitulations rather than outcomes that can actually work. The process tends to be expensive and inefficient because the parties are usually in separate rooms and cannot talk to each other. Because the emotional component inherent conflict is rarely addressed, a sizable number of settlements that result from settlement conferences tend to be relatively short-lived; this is because resentful people tend to be reluctant to comply with bad decisions they were pushed into when they were fatigued. Post-divorce legal proceedings, such as enforcement actions or lawsuits to modify divorce settlements, are therefore common. 

This model is likely best suited for high-conflict divorces, where there is and can be little trust between the parties, where there has been significant abuse that cannot be otherwise abated, where one or both parties is focused on revenge instead of working towards a mutually beneficial outcome, where one or both of the parties is acting in bad faith, or where there is other counterproductive behavior. The primary advantage is that a decision will be made or a settlement reached when backed against a wall. There are cases where that is a very significant benefit. The primary disadvantages of this process are that the decision/divorce settlement comes with additional upset and acrimony, financial expense, the surrender of self-determination due to the inherent structure of the process, and damaged relationships. This is also the least private method of resolving a divorce, as decisions on motions must be based on documents that are in the case file and become public records, and trials are public. In many counties, case files are now electronic and may be or become available on the Internet.

OVERVIEW OF DIFFERENT DISPUTE RESOLUTION PROCESSES FOR DIVORCE AND SEPARATION  

* A very rough estimate, assuming relatively uncomplicated facts and issues, and reasonably cooperative and rational clients who are both committed to efficient settlement. Your own case could take substantially shorter or longer.
** Your cost will be directly related to the number of events and steps that are necessary in your particular case, and could be substantially more or less than this rough average.
Every case is unique. You should not assume that the estimated average time or cost of your chosen dispute resolution process will resemble these estimates.