Where to Start?
This morning, I read that most divorces are filed in January and September. When I first began practicing law, I was taught that the divorce process began with filing a complaint. The client came in, retained us, and we filed the complaint or petition. We then served it on the opposing person, the spouse, via the sheriff and awaited the response to the complaint. After practicing for almost thirty years and earning my master’s degree in conflict transformation, I have abandoned this process. My clients who wish to be divorced get divorced, but the processes I recommend are much less expensive and much less likely to cause further family disharmony and strife than the process I followed in 1987.
How does the new process work? We work out the resolution first, and then file the paperwork with the court. We exchange all financial information or other relevant information, just as is required by the law in most states. We address the financial needs of the parties and then negotiate to meet those needs. We wind up with a final decree that will provide for issues such as divorce, custody, property division or support.
Additionally, we have the opportunity to work at the pace that the parties desire, rather than the court schedule. We have a far greater range of options than those available by statute. We have a streamlined process wherein the parties will not pay for lawyers to attend temporary or status hearings, respond to correspondence or discovery requests or prepare for contested hearings. The bottom line: the parties direct the course of their divorce and save time and money in the process.
Exactly what happens? Using mediation or collaborative law, the parties will exchange information and then get together in one or in a series of meetings. During those meetings, the parties, and their attorneys (if the parties desire) will work out the details of their agreement. The agreements will be put into writing and then filed alongside the paperwork to start the divorce. The court will set one hearing. The parties will attend the hearing if required by statute, and in most circumstances, the court will adopt the parties’ agreement and enter a final order.
Some people think that this type of process is impossible. If you think you are one of those people, you may think that there is no chance for an agreement, not in your case. However, chances are strong that your divorce or custody case will be resolved through a settlement. Nationwide 95% of all divorce cases are resolved through an agreement, not through a court ruling The question becomes when do you want to reach an agreement and how? Do you want to spend thousands of dollars on attorney fees and reach an agreement on the courthouse steps on the day of your trial? Would you prefer to work out an agreement in a less stressful atmosphere on your own schedule? With collaborative divorce and mediation, that is possible.
Why not go ahead and file the divorce and then negotiate the agreement? There are many reasons why “just filing” may not be a good idea. The moment parties file the divorce petition; they are put on the court’s schedule. The court has strict timeframes that it will want to adhere to. After filing, it is more difficult to negotiate. If both parties hire attorneys who are not working collaboratively, just making an offer requires one party to convey the offer to their attorney, who conveys it to the other attorney, who coveys it to your spouse. The process is then reversed to respond. This is a very expensive version of the “telephone” game that we played in elementary school. In mediation and collaborative meetings, everyone is in the room together. Not only does that save time, and provide for less opportunity for erroneous communication, but also it often saves a significant amount in attorney fees.
Perhaps the biggest problem, with “just filing” is it sets the stage for an adversarial process. The final hearing date will loom ahead. The entire process of negotiation is riddled with worry and dread as the parties move cautiously through the formal court processes.
Of course, after filing, you continue to have the option of mediation and should consider it. However, engaging in mediation BEFORE filing the suit provides a superior opportunity for a good resolution in most circumstances. Both mediation and collaborative divorce provide many opportunities for a good resolution. Delaying filing in those cases may actually expedite the final decision.