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Roughly 50% of American marriages end up in separation 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. Your decisions will likely have a profound impact on your
future.
The end of a marriage or long-term committed relationship can affect all of
your relationships. Your choices will affect not only yourself, but also your children, your family, and your friends.
Divorce is a transition with
important emotional, financial, and legal aspects. Whenever possible,
it is best to address all three aspects — emotional, financial, and legal — 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 still offer this type of conventional
divorce, nowadays there are many more options. |

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 divorce can only be granted by the court, the decisions do
not have to be made by a judge. They can be made through negotiations.
In conventional divorce, the
negotiations often 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. Both the extent of court involvement in
your divorce, 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 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 conventional divorce lawyers advise clients to file
a petition for dissolution of marriage with the court. Doing so starts a lawsuit against the other spouse.
Most lawyers provide good advice to clients, but their primary
tools involve adversarial processes, posturing, power-plays, and positioning. However,
all that process, posturing, and positioning comes at an expense:
despite good intentions, those very tools 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
usually 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 after those options are
explored.
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 onerous court procedures. Often, by the time of settlement, a Judge or Commissioner has already made
decisions that impact your future options, and the settlement occurs
among threats of court action. 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, or entering into high-stakes
coercive bartering.
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. Much of the work that
conventional 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.
Perhaps surprisingly, most conventional divorce lawyers lack any formal training
in mediation or dispute resolution skills, so they tend to negotiate by staking out
positions and posturing as they have been trained in law school and
experienced in conventional practice.
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.”
Most people do not view a
divorce lawsuit, with trial
and court motions, or even preparing for trial, as a pleasant or
positive experience. When lawyers
and judges think about family law cases in legal 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 divorce
process.
While courts can and do provide binding decisions, the
conventional divorce model
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 conventional divorce court to resolve disputes, including mediation, informal meetings,
Collaborative
family law, and arbitration. The predominant methods are:
Collaborative Divorce is a process that helps you and your
spouse work towards a
reality-based settlement that is in alignment with your goals and
priorities. Often, the services of a
small, coordinated, and trained team of professionals is deployed.
,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, so the person with
the highest skill in an area provides the highest benefit in the
most cost-effective manner. 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.
The Collaborative Divorce process usually follows parallel paths.
Most of the dialogue and much of the work to resolve the case occurs during joint sessions
with the lawyers and their clients.
Other professionals with appropriate areas of expertise join the
professional team. At the first joint session, all sign
the Participation Agreement 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 Participation Agreement requires both parties to fully disclose all relevant information
and limits them from taking advantage of mistakes of the other. The
Participation Agreement also disqualifies the lawyers from going to court on any disputed matter.
That frees up the lawyers to advocate for a
settlement.
The clients 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.
To learn more, go to our
Collaborative Divorce
pages.
Divorce Mediation is a valuable process that offers client-directed outcomes.
In a mediation model, the parties approach their case with the goal of seeking resolution
for divorce.
Generally, both parties will be in the same room together with an
impartial mediator, whose goal it is to help the the parties have
the necessary conversations to reach a divorce settlement. Statistically,
mediation successfully results in an agreement a great majority of the time.
Different mediators use different styles of mediation, including
transformative mediation, facilitative mediation, and narrative
mediation, among others. Regardless of the divorce mediation style, the parties
will normally spend a fair amount of time together in the same room
with the mediator, Attorneys are usually not present during mediation
sessions, but are available to support clients.
Mediation is a process that can work very well for many
people.
The primary disadvantage to mediation is the limited legal support provided for clients
in real time. The mediator must remain impartial,
and may not provide legal advice. For that
reason, many parties consult with their divorce attorneys before and
after mediation sessions to ensure that they will cover all necessary issues, and have information concerning legal
consequences of certain decisions.
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.
A word of caution when discussing "mediation" with your divorce
lawyer, because this style of mediation may actually be unfamiliar
to your lawyer. When conventional lawyers talk about “mediation,” they will
often be referring to
an evaluative "settlement conference" where parties and their
lawyers are placed in separate rooms and a neutral carries offers
back and forth. The settlement conference model of “mediation” that many lawyers use to settle their cases.
More about settlement conferences is below. Because lawyers may not
be familiar with party-only divorce mediation, it may be necessary
to educate your attorney about this process.
To learn more, go to our Divorce Mediation
page.
In a conventional divorce, the court may be involved in many phases of the
divorce proceeding. However, the experience will vary depending on the
lawyers. 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.
Nowadays, this conventional method of negotiation is sometimes referred to as “cooperative law.”
There are a number of excellent attorneys whose personalities lend
themselves to practice in this style.
Perhaps more typically in conventional representation, at least one party or one lawyer is not settlement-focused
from the outset. 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
strongest case,
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. Often,
the arguments made are that one of the spouses is not
well-intentioned and needs to be pushed to arrive at any outcome. There are formalized and expensive procedures for “discovering” relevant information (exchanging information).
Most cases that follow the litigation model are settled. Usually, this occurs at a settlement conference
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 both parties feel equally unhappy. Most of the time, this process does result in a settlement
and there is then a cessation of the current legal
proceeding.
The primary disadvantages with settlement conferences are that
they usually occur after parties have become entrenched in their
positions.
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 those extreme positions, with the result
that both may feel resentment for having to give up their idealized
extreme scenario. Settlement
conferences are often long (generally scheduled to last 4 to 8
hours or longer), and can resemble wars of attrition where important decisions are
made during periods of stress and fatigue. There may be
inefficiencies caused by separating the parties into separate rooms and
preventing discussions. 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 and stressed. Post-divorce legal proceedings, such as enforcement actions or lawsuits to modify divorce settlements, are
common.
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COLLABORATIVE
DIVORCE
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FACILITATIVE MEDIATION
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ADVERSARIAL SETTLEMENT/LAWYER NEGOTIATION
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LITIGATION
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Basis for Decisions
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The interests and concerns of the participants, with full legal
support
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The
interests and concerns of the participants
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Legal
framework based on local
law, court rules, client/lawyer positions, settlement
master's (mediator's) perspective
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Legal
framework based on local law, court rules, client/lawyer positions,
Judge’s perspective
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Goal and Measure of
Success
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Meeting
reasonable needs and interests of all parties
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Meeting
reasonable needs and interests of all parties
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Biggest
possible measurable outcome for self (before direct and indirect costs)
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Biggest
possible measurable outcome for self (before direct and indirect costs)
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Issues That May Be
Addressed
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Any
issue that concerns an interest of yours
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Any
issue that concerns an interest of yours
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Only
issues that fit within the legal framework
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Only
issues that fit within the legal framework
and for which there is evidence
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Role of Lawyers
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Manage
conflict, and facilitate and guide negotiations; advocate and counsel
towards settlement; identify information for exchange; complete legal formalities;
full legal, financial, and emotional support with a professional
team.
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Usually not
integrated in the process. Optional independent
advice and review of mediated agreement; complete legal formalities;
draft legal documents; rarely
participate in negotiations.
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Similar to litigation: Prepare
for trial; bring motions; obtain evidence and shape arguments; advise
client about law, settlement, and what is considered relevant under the law; conduct negotiations,
usually with adversarial arguments; complete legal
formalities.
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Prepare
for trial; bring motions; obtain evidence and shape arguments; advise
client about law; present evidence to court; advocate in post-trial
phase; complete legal formalities
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Who Makes the Final
Decision?
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You
and your spouse/partner
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You
and your spouse/partner
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Clients
and lawyers
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Judge
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Estimated average
time*
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3-9
months*
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1-8
months*
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7-11
months*
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11-14
months
(if not appealed)
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Estimated average
cost**
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Moderate
–
likely less than litigation-based settlement
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Low to Moderate
– likely quite a bit less than litigation-based settlement
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Expensive
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Very
expensive (can easily be $60,000 to $120,000 or more per side)
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Estimated
likelihood of post-agreement litigation of subsequent issues
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Very
low. The team helps ensure that the financial, emotional, and
legal aspects are addressed to the extent possible.
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Low
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Moderate
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High
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* 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.
One of the advantages of living in the Seattle area is that there are
many divorce lawyers and other professionals who have different training
and skills, including advanced skills in particular processes. That means that you and your spouse
can choose the divorce
process that best fits your personalities and situation. The Divorce Process
Collaborative Divorce
Divorce Mediation
Litigation, Adversarial Negotiation, and Conventional Representation
Overview Comparison Chart of Divorce Processes
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