Beyond Litigation: Know Your Divorce Options
If you have never been through a divorce, where did you learn what you know about divorce? Some people form their ideas about divorce from the experiences related by family and friends, or even from television shows and movies. While some of that information is technically accurate, it may also emphasize the more dramatic aspects of divorce. After all, drama makes the best stories! But divorce doesn't have to be a tragic courtroom drama, and in fact, can be a downright civilized experience—if you do it right. While most divorces are litigated, there are other avenues. Let's take a look at divorce options beyond litigation.
Most divorces begin with someone filing a petition for divorce with the court, and the other spouse receiving a copy of those papers. This is the beginning of the litigation process, but that process rarely ends in an actual divorce trial. In fact, less than 5% of divorces end in trial.
Almost all of the rest end in a negotiated settlement. That is, at some point between the filing of the papers and the scheduled trial date, the husband and wife reach agreement on all the issues in the divorce: custody, child support, spousal support, and property division. Attorneys may help with the process of negotiating an agreement. Then, rather than going to trial, the spouses through their attorneys draw up a document that reflects their agreement. If both spouses are represented by attorneys, they do not even have to appear in court. The Court will simply review the submitted Stipulated Judgment & Decree in their chambers and sign it. It is only when one or both parties are unrepresented that they appear in court with their Stipulated Judgment and Decree. Then they simply may answer a few questions, and the judge signs their agreement, turning it into a divorce decree.
Advantages of a negotiated settlement include avoiding the stress and expense of trial, possibly having your divorce over with more quickly, and having more control over the outcome than you might with a judge making all the decisions.
Mediation is a form of alternative dispute resolution (ADR). In mediation, both spouses meet with a neutral party, the mediator, to identify issues that need resolution in the divorce and reach agreement on those issues. Mediation may take one session, but often takes two or more. The mediator does not favor one party or the other and does not "decide" issues. Instead, he or she will help the parties generate options and reach a "win-win" outcome in which, ideally, everyone's needs are met. The agreement is documented and becomes the couple's divorce agreement.
Like a negotiated settlement, mediation may involve lawyers, but doesn't have to. What is different is the presence of a neutral party to guide the parties in reaching agreement.
Advantages of mediation may include a shorter divorce process, lower attorney fees, and greater satisfaction with the divorce settlement because the couple created it themselves. Through the mediation process, the parties may also improve their communication skills, which is a real bonus if they will need to co-parent after the divorce.
Collaborative divorce is another form of alternative dispute resolution. In Collaborative divorce, each party is represented by an attorney. The process involves a series of "four-way" meetings between spouses, their attorneys, and other professionals including a financial neutral to help resolve money issues, a child specialist to speak for the needs of the children in the divorce, and a divorce coach or coaches to help the parties address issues that might impede divorce negotiations.
A hallmark of Collaborative divorce is that the parties agree to fully disclose all information relevant to the divorce, to be honest and respectful in negotiations, and not to litigate. The promise not to litigate means that parties can speak freely, including to apologize to each other, without fear that their words will later be used against them. If the process does break down and the parties decide to litigate, they will need new attorneys to do so.
Advantages of Collaborative divorce include a more respectful process than litigation. The parties also set the pace rather than having to proceed on the court's schedule whether they are ready or not. Disadvantages include the expense of working with several professionals, and the need to start from square one with new attorneys if the parties can't reach agreement.
If you find yourself in the position of being in agreement with your spouse on all the issues in your divorce, uncontested divorce might be right for you. This process, also known as a joint petition for dissolution of marriage, is often best for couples with no children and relatively few assets who simply want to end their marriage and move on. Although there is less of a role for an attorney in uncontested divorce than in other processes, it's still wise to have an attorney draft and review your divorce agreement to ensure that you understand all your rights and responsibilities.
No matter what divorce process you choose, we encourage you to strive for what we call "cooperative divorce." Once you have realized your marriage is over, fighting benefits no one but your attorneys. Focus instead on cutting your losses and doing what's in your children's best interests rather than "winning" every last point and incurring a huge legal bill in the process.
If you have questions about your Minnesota divorce options, we invite you to contact our law office to schedule a consultation. We look forward to working with you.