Family Law and Divorce Options

Divorce Process Options  Collaborative Divorce  Divorce Mediation  Conventional Representation  Overview Comparison Chart of Divorce Processes

THE DIVORCE PROCESS OPTION — PERHAPS YOUR MOST IMPORTANT DECISION

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

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

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.

Conventional Divorce Representation

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. 

 

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.