after the divorce was finalized, she learned that her husband had had another child with his girlfriend while the mediation was under way! She was furious and wanted to “undo” the divorce. But sadly, it was too late.
Consider the following ways to get divorced and decide which makes the most sense for you.
Mediation
In mediation, you and your spouse meet with a mediator (usually an attorney or a retired judge) who will help you work toward settling the issues in your divorce — property division; division of debts; spousal support; and custody, visitation, and child support if you have children. Mediation is a voluntary process where the parties work with a neutral mediator to try to resolve their disputes without court hearings or a trial. Mediators help the parties work out voluntary agreements that promote individual and common interests through understanding and cooperation. Mediation is generally less contentious, less expensive, and sometimes less time-consuming than obtaining a divorce through the legal system.
However, not every divorce can be mediated. A couple of prerequisites must be met for mediation to work. First, both you and your spouse must be able to set aside your emotions and treat the divorce like the dissolution of a business partnership. And second, you both must be willing to cooperate and compromise. If there is too much acrimony or either of you are unable to work cooperatively toward a reasonable compromise, then mediation will not work. If one person is incapable of being reasonable or is using the process to stall or to vent their emotions, then mediation is a waste of time. Sometimes the parties must blow off some steam before they can mediate; therefore, the timing of when to engage in mediation is very important.
INSIDER TIP
Even if you mediate, you should consider retaining an attorney to advise you along the way.
The mediator’s neutrality means she or he does not represent either you or your spouse. The mediator is looking for ways for both parties to compromise, to meet in the middle, and if either person is unwilling, mediation will probably not work.
Frequently, in divorces where the husband is the primary breadwinner, he is eager to mediate because he knows that if his spouse is not represented, he can wear her down through the negotiations. I am often sought out by husbands to advise them in advance of and during mediation to help them obtain what they want. Do not assume that the mediator is looking out for your best interests and that your husband is unrepresented. This can be a trap for the unwary.
Some mediators will have you and your spouse meet in the same room and work with you toward resolution. This process may be frustrating and nonproductive if you feel you cannot be in the same room as your spouse. As one client told me after dropping out of the mediation process, “If I could sit in a room with my husband and work things out, I wouldn’t be getting divorced.”
Mediation is completely voluntary. If the mediator makes recommendations that you do not agree with, you can stop the mediation and have an attorney represent you. Many couples try mediation because they assume it will be less costly and contentious, but for a variety of reasons, mediation can fail, and couples end up hiring attorneys to handle their divorce.
A common complaint is that the mediator is “ineffective” because she or he does not move the case along or push the other side to settle. Remember, the mediator is neutral and does not represent you or your spouse. Also, the mediator is looking for ways to get you and your spouse to compromise. Plus, since mediators do not go to court, if your spouse stalls as a tactic (which unfortunately happens often), there are no “teeth” to compel compliance or move things along. Many people find mediation to be frustrating, time-consuming, and expensive, and they end up hiring a lawyer when their divorce drags on indefinitely because their spouse refuses to settle and the mediator is powerless.
The Collaborative Approach
The collaborative approach involves a team approach where the parties agree to cooperate with one or more attorneys and advisers (such as accountants, appraisers, child-custody professionals, and therapists) to resolve their differences and develop positive communication skills for future contact. Through the collaborative process, the parties reach voluntary agreements on all of the issues in their case without court hearings or trial. This can minimize the impact of conflict on you and your children, and it provides greater support than mediation, since both you and your spouse are represented by attorneys and a team of other professionals during the process. If you and your spouse are able to work collaboratively, you can create personal solutions that are right for your family, maintain decision-making with you and your spouse, and preserve your privacy.
INSIDER TIP
You cannot use your collaborative attorney to go to court if the collaborative process fails. Collaborative attorneys sign an agreement that they will not go to court. If the collaborative process does not work out, you have to hire a new attorney. If your spouse is not a good candidate for collaboration, it could end up being more expensive to achieve your desired result.
This approach is desirable if you have children, if you place a high priority on continued positive communication with your spouse following the divorce, and if the marital assets can be easily accounted for. However, it can be costly because there are more professionals involved, and if one spouse wants to drag things out or is unwilling to collaborate, your case can get bogged down, since there are no enforceable deadlines (unlike traditional litigation). If your spouse is untrustworthy and is not forthcoming regarding his income or assets, collaboration can be a trap.
If you do not have minor children or you prefer less contact with your spouse, then the added expense and effort of collaboration may not be worth it. Like mediation, the process is voluntary and nonbinding. So if you are unhappy at any point in the process, you can hire an attorney (who must be different from your collaborative attorney).
Like mediation, the collaborative process can be abused because the lawyers sign an agreement that they will not go to court. A husband who is hiding assets or minimizing income may use the collaborative process to his advantage. The lawyers cannot take discovery to uncover the hidden assets or establish a spouse’s earning capacity and must rely upon whatever the parties voluntarily provide regarding their finances.
The following example illustrates the problems that can arise when one spouse is hiding assets and the parties are “collaborating.” I was once asked to represent a wife, Charlene, when her collaborative case fell apart after six years. During this time, Charlene used much of her inherited savings to support herself and the children, while her husband, Richard, was transferring and hiding millions of dollars from the family businesses to offshore accounts. Throughout this period, Charlene and Richard were meeting regularly with their “collaborative” team of lawyers, accountants, and therapists, who were presumably helping them to arrive at an acceptable settlement while “keeping the peace.” At the end of six years, when Charlene was about to run out of her inherited savings, Richard and his attorney tried to force her to accept a settlement that was a tiny fraction of what she was entitled to. Because they were in the “collaborative” process, Charlene’s attorney could not take Richard’s deposition or subpoena bank records to uncover the fraud. Charlene had to hire me and a new forensic accountant to get what she was entitled to.
Understand that the “collaborative” process is only as trustworthy as the people who are using it and that the lawyers are limited in what they can do to protect you because their hands are tied.
Traditional Litigation
Traditional litigation gets a bad rap for a variety of reasons. It can be costly, and litigation is uncertain. A virtual stranger
