Many people find themselves in the middle of a divorce without understanding all of their options. Divorce is a transactional event, but the emotional part of the divorce often makes it much more difficult. Below are descriptions of various ways to handle your divorce:
Kitchen Table/Flat Fee
When the two partners are able to keep the divorce process completely transactional, and both partners are able to come to their own resolution, this option is one to consider seriously. Most of the time, this option is successful in situations where the marital estate is less complicated, and/or the marriage is short and the parties do not have children. Of course, this does not mean that couples in longer marriages or who have children cannot consider this option.
The key to a successful outcome with the kitchen table approach is the ability to resolve the dispute without much assistance from any professionals.
Understanding what the collaborative law process is and what it is not is key to knowing whether or not this process is for you and your family. If you are involved in a situation where the two of you have reached an agreement, you may not need to follow the collaborative divorce process. Often, clients ask if collaborative law is the least expensive process. While I believe the collaborative process is not necessarily the least expensive, I do believe it is typically far less expensive then litigating your divorce.
For partners who want and need a continued, amicable relationship after the divorce, the collaborative law model is an excellent option. For example, when children and/or grandchildren are involved, each partner should give serious consideration to the collaborative law model. If the two partners are joint owners in a business and they need to find a way either to have one partner exit, continue to own the business jointly, or to sell the business, the support of the collaborative law option helps navigate these steps.
The collaborative law model is a process that employs a series of meetings with the parties, their respective attorneys, and usually a neutral mental health professional (particularly if the parties have minor children), and a neutral financial professional. This team approach can provide much support in navigating a way forward to end a marriage, as the collaborative law process is more client-driven. This process is more private, more specialized, and can be modified to address the specific issues and challenges of a particular family. In other words, this process can be individualized.
As in any process, there are also risks with the collaborative law process. It is best to discuss the strengths and risks of the process with a trained collaborative law professional.
When discussing options, remember that certain individuals really do not desire or see the possibility of ever being in the same room with their partner. In these circumstances, the collaborative process may not be the right fit. Nor are direct negotiations between the partners possible; hence, a kitchen table/flat fee option is not a good fit. In these situations, attempting to negotiate an agreement where the parties’ respective attorneys have the direct interaction might be best.
In the State of Texas, mediation is usually a caucus-style process where the individuals are in separate rooms with their respective counsel, and the mediator goes back and forth to present offers and counter-offers in an attempt to resolve the disputes.
It has been my experience that mediation is utilized when some other form of negotiation has failed. Mediation can be incorporated into the other processes described above, particularly when the parties reach an impasse on one or more issues. Mediation can be used in the collaborative law model, a negotiated settlement process, and as a measure to avoid litigation.
A misconception many clients have is that mediation is a stand-alone process, which is not exactly true. It is my experience that mediation can be employed in conjunction with all of the options and can be successful. Timing is key for mediation. In order for mediation to succeed and for all issues to be resolved, the parties must be educated as to their particular financial situations. If they have children, the parties must know the various issues to be resolved with regard to support, possession, and conservatorship.
There are times that there are particular circumstances that may require litigation. After several years of experience, I believe these circumstances can be categorized as follows:
- Child Safety – In circumstances when alcohol abuse or other substance abuse is present with one parent, the other parent may need to take immediate emergency action to get specific relief from a Judge with an enforceable order. There also are circumstances where a child is being abused by one parent and the other parent has no other option but to take immediate emergency action.
- Family violence – If certain incidents of family violence have occurred, immediate protection in the form of a court order is required.
- Indecision – Sometimes one person (or both) is incapable of making decisions. There are rare times when one person just will not make a decision. This inability to make a decision could be related to mental health issues, or maybe a deep religious or moral conviction that divorce is not an option creates the inability to agree to anything.
- Power imbalance – When one spouse has control over all financial aspects of the marriage and has not been forthcoming or has hidden assets, sometimes litigation is necessary for the other spouse to secure access to money.
- High-conflict relationships – If spouses are so at odds they will never, ever agree in a million years, it may be necessary to have the parties resolve their issues by submitting their requests to the Court and having a Judge decide.
The best first step in understanding your divorce options is to consult with a family law attorney in your area that can discuss each and every option based upon your specific situation.