Divorce is an emotional, financial, relational and parenting event with legal overtones. It is an event in which the participants, typically, are not aware of their options, where the biggest sources of information about the process comes from the media or through third-hand stories about others’ divorces.
There are two general models for resolving divorce disputes: the Family-Centered model and the Court-Centered model. Under the Court-Centered model, outcomes are limited because they must fall within the shadow of the law. This model stresses interactions that are adversarial, competitive, distributive, and evaluative. The divorcing couple is left with little control over the process choosing to settle for a minimal safety net approach for resolving their disputes. Attorney-directed Settlement, Arbitration, and Trial are all dispute resolution mechanisms based on a Court-Centered model.
The Family-Centered model stresses a multi-disciplinary problem solving approach that encourages the active participation of the divorcing couple. This produces creative, flexible outcomes based on the interests and personal values of the divorcing couple. talking over the kitchen table, Mediation and Collaborative Divorce are based on a Family-Centered model.
Why use a Family-Centered model of divorce?
- There is a greater likelihood of better quality, longer-lasting outcomes
- Outcomes can be more creative and flexible
- Outcomes are based on the interests and personal values of the divorcing couple
- It stresses a multi-disciplinary, problem-solving approach
- Options include: Kitchen Table Discussions, Mediation, and Collaborative Divorce
Kitchen Table Discussions
The divorcing couple sits down at their kitchen table to discuss and decide upon the details of separation. Once they come to an agreement on how to handle all the matters of their separation including things like property, finances and children they can: (a) bring the details to an attorney who then drafts the dissolution papers and files them with the court, or (b) complete the dissolution papers and file them with the court by themselves.
- Pros
- The couple has maximum control over the process
- Easier if there are no children involved
- Very low cost
- Cons
- Difficult to give sufficient consideration to important financial and/or legal issues and their future implications
- Couple can be aware of the tax implications of their decisions. This can lead to unintended consequences that can have a negative financial impact
- Couple may have minimal information on the dissolution process or outcome
Mediation
The divorcing couple meets with a qualified neutral (a mediator) to discuss the details of their separation. The mediator’s role is to serve as a neutral third party who facilitates the discussion and helps the couple move toward agreement. Once the couple comes to an agreement, they take the details to an attorney who drafts the dissolution papers and files them with the court.
- Pros
- The couple has considerable control over the process
- Easier if the couple is largely in agreement on the key aspects of the divorce
- Low cost
- Cons
- Difficult to give sufficient consideration to important financial and/or legal issues and their future implications
- Couple can be aware of the tax implications of their decisions. This can lead to unintended consequences that can have a negative financial impact
Collaborative Divorce
Collaborative Divorce takes a team approach to working out an agreement for divorce. The team generally consists of 2 attorneys, a divorce coach, a parenting specialist (if there are minor children), and a financial specialist who all work with the divorcing couple as they develop an agreement. The couple signs a participation agreement that requires the couple to commit to resolving their divorce outside of court.
- Pros
- Couple has considerable control over the process
- Using a team approach allows the couple to cover the relational, financial, parenting, and legal aspects of divorce
- It is cost effective and is typically less costly that settlement, arbitration, or trial
- It is, perhaps, the most family-friendly approach to divorce because of the care taken to support children
- It is a less-stressful approach. It encourages the couple to bring their “best selves” to the discussion table
- It can be sensitive to special needs
- It can serve as a safe space in which to reach resolution
- Cons
- It may not be appropriate if 1 member of the couple is unwilling to collaborate and insists on taking an adversarial approach
- If the couple is unable to reach settlement, the participation agreement requires the couple to “start over” with litigation attorneys
The Court-Centered Model
- Outcomes are limited to those that fall within the shadow of the law. The couple’s issues are categorized, analyzed, and resolved according to statutory guidelines.
- It is an adversarial process that encourages a win-lose attitude among the participants
- It is competitive and evaluative
Settlement with a Conventional Attorney
Each member of the divorcing couple hires an attorney. After a period of discovery, the details for settling issues relating to property, finances, and children are negotiated until a settlement is reached or one of the divorcing partners decides to go to trial.
- Pros
- It is familiar to most people
- It is helpful when 1 spouse is unwilling to collaborate
- It may be appropriate where there is domestic violence or substance abuse
- Cons
- It is adversarial
- It is time consuming
- It often involves psychological evaluation of both parents to determine the balance of care between the parents
- It can be costly because of the discovery process, interrogatories, experts and motions
- It may not be responsive to the emotional and relational aspects of co-parenting
- There is the threat of going to trial if a resolution cannot be negotiated
Arbitration
Arbitration is less formal that a trial, but is often conducted like a hearing or trial. After a period of discovery, the divorcing couple and their attorneys bring the details for settling issues relating to property, finances, and children to a court official who has the authority to make binding decisions regarding the issues.
- Pros
- It can shorten the waiting period before the case can be tried in court
- It is a way to stop ceaseless litigation
- It can be used to decide a single issue or all the issues involved with the divorce
- Arbitrated issues cannot be appealed
- Cons
- Arbitrated issues cannot be appealed
- One partner may be very unhappy if the matter is decided in the other partner’s favor and they have no further recourse
- It can further harm the co-parenting relationship when children are involved
Trial
Each member of the divorcing couple hires an attorney. After a period of discovery, the couple and their attorneys go before a court. The attorneys present their client’s case and all matters in dispute are settled by a judge.
- Pros
- Thanks to TV, this is familiar to most people
- While the judge will decide those issues that have not been negotiated or settled, it may be possible to appeal the judge’s decision
- Cons
- It is a very stressful, time consuming, and expensive process
- There is little flexibility in the process or the outcomes. The divorcing couple gets the minimum safety net of the law
- It is an adversarial, competitive process
- Children often suffer. They see their parents experience the conflict inherent in the process
- There is often a continued deterioration of co-parenting and extended family relationships
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