If you’ve come to the decision to divorce, you come to another important decision – how will you accomplish your goal? There are several roads leading to the termination of your marriage, and the one you choose can have a significant impact on your future and that of your family. Following are options to consider:
In the Collaborative Law model, husband and wife and their lawyers agree in advance that no one will take any contested issue to court. The “Collaborative Team,” which can include mental-health and financial professionals, focuses its attention on finding ways to restructure the family so that everyone involved gets their needs met to the greatest extent possible. If you and your spouse decide to follow the Collaborative Law road to divorce, you must sign an agreement that you will share all information available to you about your property and children. In the event that your are not able to settle your issues using the Collaborative Law model, litigation attorneys can still take the case to court, but the collaborative lawyers must withdraw and cannot continue to represent you.
In litigation, decisions can be made for you and your spouse by a judge, or sometimes a jury. There are very strict rules about what information may be presented to the decision-maker. Litigation does provide resolution for people who cannot find a way to settle their differences any other way. However, litigation often focuses on the negative aspects of divorce, and often causes people to focus on how they are “right” and the other is “wrong,” when they really may just have different ideas about how their lives should look after divorce. Even though most cases settle before they ever go to trial, the process of preparing to go to trial, if necessary, can cause long-term damage to the relationship between the parties. The financial cost to the parties can be considerable.
Although seldom used, arbitration is another road to resolution that is available in a divorce, if both parties agree to utilize the process. An arbitrator is a hired judge who hears the evidence that would otherwise be presented in a trial, and the arbitrator’s decision can be binding or non-binding, depending on the agreements of the parties. Like Collaborative Law, an agreement to arbitrate in a family law matter must be in writing. An arbitrator can be hired to decide all of the issues in a divorce or just one or more. The arbitrator must be paid for his or her time, unlike a judge who does not charge for his or her services.
“Kitchen Table” Settlements
This settlement method is simple. You and your spouse sit down “at the kitchen table” and work out an arrangement that satisfies each of you. The agreement can be taken to a lawyer to be put into legal form, or used to complete do-it-yourself divorce forms. Unlike some other divorce options, this method of reaching agreements can produce inexpensive, quick, private agreements for couples who do not have children or substantial assets. However, Texas family law is so complex that this method is not advisable to use when there are minor children, real estate, retirement plans or other complex assets involved. Without the benefit of legal advice, you may not know if you are giving up valuable rights. It is also possible that you will make mistakes that someone with family-law experience could help you avoid. Also, If you and your spouse do not have equal information and equal power in the relationship, one person might not get his or her needs met.
Bookstores and online resources sell forms that can be used to handle a divorce without attorneys. Simple forms for people without children or substantial property are also available online without charge. Divorce kits or forms generally provide a check-list approach to property and child-related issues, so users are not left completely in the dark about their options. But not all forms are equal; some can create more problems than they solve. When children and real estate or other major assets are involved, using forms or checklists is usually not advised.
Early Intervention Mediation
Mediation is assisted settlement negotiation. Mediators don’t take sides, and are used for the sole purpose of trying to help people reach a settlement. Even if the mediator is an attorney, he or she cannot give the parties legal advice. Often couples who choose this route to resolution will hire an attorney or attorneys to give them legal guidance before or during the mediation process, which usually is conducted in a series of joint meetings with the mediator. Even if you reach agreement in mediation, in most cases you will then need the assistance of attorneys to prepare the necessary papers to ensure that your agreement is enforceable and accomplishes what both parties want.