I’m sure you’ve heard the statistic that 50% of marriages end in divorce. But I bet you never thought your marriage would be one of them.
No one does. Divorce is an emotionally charged time for any couple. When you decided to get married, your relationship was built on a foundation of mutual respect and admiration. Now that you’re facing separation, those feelings may have faded or been replaced with dislike.
Deciding to leave your marriage was (or will be) one of the biggest and most difficult decisions you have ever made in your life. But what you may not have realized at the time was that this would not be the only important decision you’d need to make. It was the first of many…
The next thing you’ll need to decide is how to get a divorce. Whether your divorce is amicable or fraught with tension, you need to decide how you’ll handle the proceedings. Every situation is different and there is no “one-size-fits-all” solution.
Just because a particular divorce method worked well for a friend or co-worker, there is no guarantee it will work well for you. Conversely, if a particular option may not have worked for someone else, it doesn’t necessarily mean it isn’t a viable option for you.
Let’s look at 5 ways you and your spouse can get divorced.
- DIY Divorce: In legal terms, a DIY divorce is called a pro-se proceeding. A pro-se divorce will cost you only a few hundred dollars. This is an appealing option for couples who want a quick, uncontested divorce. It also works best for those who are parting on amicable terms, you’re on the same page, have few assets to divide, have not been married a long time, and don’t have children. Although this is the quickest and least expensive process for a divorce, there are quite a few cons such as mistakes being made, paperwork filed incorrectly and may lead to an unfair settlement.
If your divorce isn’t going to be clean-cut, you’re best sticking with a professional.
- Meditation: In divorce mediation, you and your spouse meet with a trained, neutral mediator to discuss and resolve the issues in your divorce. Mediation sessions often take place in an informal office setting, but you might also be able to go through your mediation online. Although judges often order divorcing couples to participate in mediation before going to trial, you have the option of mediating on your own—either before you file for divorce or at any time after.
A Mediator can help you reach an agreement on the issues you and your spouse need to resolve to finalize your divorce, such as child custody, child support, and property division. Mediators don’t make decisions or offer legal advice, but rather serve as facilitators to help spouses figure out what’s best for their situation. This process may also be done either with or without legal representation to ensure.
When spouses reach an agreement through mediation, most mediators will draft (and possibly file with the court) a divorce settlement agreement. There are many advantages of mediation rather than litigating such as the cost being far less expensive than a contested/litigated divorce, confidentiality as there will be no public record of what takes place in your sessions, freedom to choose your ideas as to what is fair, and control with your spouse of the process and not the court.
- Collaboration: Also known as Collaborative Law. A collaborative divorce is a legal divorce process that allows couples to negotiate all the terms of a divorce, without the need for mudslinging or fighting in court. Couples will use a combination of mediation and negotiation to reach an agreement on the critical terms of the divorce, like property and debt division, child custody and child support, alimony, and spousal support. Both sides make a firm decision to stay out of court.
Whether a collaborative divorce is right for you depends on whether you & your spouse’s opinion on the process, willingness to negotiate and ability to communicate and work together. However, if there is a history of domestic violence or you’re unable to communicate civilly, you may likely need to file for a contested divorce.
Divorce is messy, and it’s unlikely that both spouses will walk away from the process feeling like they received everything they wanted, but a collaborative divorce allows a couple to retain the power to decide how to proceed with the essential divorce issues without third-party intervention (i.e., the judge.)
- Arbitration: An arbitration is similar to mediation, except the presiding neutral third party renders a decision. In Divorce Arbitration, the divorcing couple and their respective attorneys choose and agree upon an Arbitrator, usually an attorney or retired judge, who is granted the ultimate decision-making authority when deciding on a case’s outcome. However, unlike a mediation where a Mediator assists the couple in seeking resolution, an Arbitrator makes the final decision, similar to a judge. Cost is another upside to arbitration; although it’s still expensive, it won’t cost as much as a trial. That’s because it shouldn’t take quite as long for your lawyer to prepare for the hearing, and the arbitration itself may be shorter because the arbitrator won’t be as strict about evidence as a judge would be.
An arbitrator’s decision generally is binding, which means if you don’t like it, you can’t ask for a do-over and go to court for a second chance. You also cannot appeal the decision to a higher court, so you are stuck with whatever the arbitrator decides. This process is common among celebrities, politicians, and high-net-worth individuals, however, if mediation is not working for you, this may be a good option.
Arbitration isn’t available everywhere. A few states don’t allow arbitration in divorce cases. Check with your lawyer or with your local court clerk.
- Litigation: The nature of a litigated divorce, is high-conflict, adversarial, and costly. Litigation is the most costly, time-consuming, and emotionally draining option there is. When referencing litigation, you are generally referring to holding a trial in public court in front of a judge. Another form of litigation is a negotiated settlement. At any time in either litigation or arbitration, if both sides can agree on unresolved issues through negotiation and compromise, this is known as a negotiated settlement. Often, this happens when one or both sides do not like how litigation or arbitration is progressing. Keep in mind that there is a direct correlation between the level of conflict and the cost of your divorce. The more things you disagree on, and the level of disagreement you have, will translate into more (sometimes whopping!) legal bills. Your case will be settled, but the only ones who might be happy about it are the attorneys you each retained. Litigation is also less flexible than other types of divorce. You are bound by formal court processes and procedures. All other forms of divorce offer more flexibility and informality.
Finally, when litigation is highly contested, it tends to create a storm and intensify the amount of conflict that’s already present. As you can guess, this defeats the process of settling your issues and is more likely to result in both sides digging in their heels to prove a point.
The good news is that most divorces do not make it to litigation. About 95% of all cases are settled before a judge must make a ruling. Those who are in the 5% may be locked into a high conflict, high asset, unreasonable, high stakes battle that must be played out in court.
In cases where domestic violence or substance abuse is present, or a spouse commits some form of criminal behavior, it may be better to have a judge rule on your divorce and create a public record that can be accessed if any of those issues return. Often, they do.
The choices you make before you begin a divorce are critical.
Regardless of how long you’ve been married, or which of you first decided to get divorced, your choices before you start the divorce will likely set the tone for how the entire process will unfold for you and your children. I recommend to my clients do their best to set a peaceful, fair, and child-focused tone from the beginning. This may determine how cost-effective your divorce will or will not be. People who prepare do better in divorce!
Hayley Lisa, The Divorce Coach for Men