Do I have to go to court?
In my 30 years of being a divorce lawyer, no one has ever come to my office for a consultation and asked: "When can I go to court?" In fact, usually, clients ask "Do I have to go to court?" The answer to that question is no, it is possible to get a divorce and never have to step through the courthouse door. There are processes available that allow a couple to avoid going to court: Mediation; Collaborative Practice; and Negotiated Settlement.
What is Mediation?
Mediation is facilitated negotiation. You and your spouse must agree to hire a mediator, most often a family lawyer who will meet with you and your spouse, and then will structure and facilitate the conversations between you and your spouse that are necessary to resolve all items which must be addressed in a final divorce agreement. The mediator can also help you with the paperwork that must be filed with the court to start the divorce legal proceeding. The mediator is neutral, meaning that s/he can provide you with general legal information, but cannot advise either spouse about what is best for them. You can hire each an attorney to consult with during the mediation process to advise you individually, to answer individual questions, and ensure that you are looking out for your interests. You meet with your consulting attorney as often as you feel necessary, but your attorney does not (usually) come to the meetings with the mediator.
What is Collaborative Practice?
Collaborative Practice is similar to mediation in that you and your spouse must agree to use this process, but it uses a team approach and provides more support to each of you. You and your spouse each hire a lawyer, along with one financial specialist who acts in a neutral capacity, and one or two communication coaches, depending upon whether you think you will need more or less support with communication. The lawyers handle the legal paperwork and structure the legal discussions. The neutral financial specialist gathers the financial information which, by law, must be disclosed, and assists with compiling budgets, analyzing cash flow and exploring financial settlement options. The communications coaches help you to navigate the emotional transition your family is going through, fashion a parenting plan, if you have children, and decide how to talk about the divorce with your children, friends, community, and with each other. We all work together as a team to assist you in reaching agreements.
What is Negotiated Settlement?
You may be asking "What can I do if my spouse will not agree to use mediation or Collaborative Practice?" Negotiated Settlement is available if your spouse will not agree to mediation or Collaborative Practice, or if you don’t think these processes are right for you. Negotiated Settlement is a more traditional model where your attorneys will assist with negotiating the settlement and you can still stay out of court. Your attorneys have a more prominent role in negotiating and settling the case, but you and your spouse still resolve everything by agreement. This process tends to result in an agreement that more closely resembles what a Judge might do, but you do not have to go to court.
Which process is right for me?
One threshold question to ask is "How much support would you like while going through the divorce process?" Mediation is a good process if you think that you can sit across the table from soon-to-be-ex spouse and have difficult conversations with the assistance of a mediator. You will also have the advice of your consulting attorney, but your attorney is not with you at the mediation table. Mediation works best if you can talk about the things that are important to you and listen to and consider the things that are important to your spouse. You must also be able to assess information and make decisions during the mediation sessions.
If you think that you would like more support, such as having a professional to support you during these difficult conversations, then Collaborative Practice may be the better process for you. You can have your collaborative attorney with you, as well as your collaborative coach, and the financial neutral, all of whom can assist with the conversations and help answer questions as you go through the process.
What if my spouse and I cannot agree on everything?
If you are your spouse are unable to reach agreement on everything, a "global settlement," then you may need to ask a Judge to decide some things. You can still keep the agreements you have reached, and ask the Judge to decide the items that you are unable to agree upon. Whether your attorney will go to court with you depends on the process and the attorney you pick. If you were in mediation, it is possible that your consulting attorney will represent you if you must go to court. If you are in Collaborative Practice, everyone signs an Agreement early in the process which states that your professional team, including your attorneys, will not go to court. If you are using Negotiated Settlement, whether your attorney will go to court or not depends upon whether the attorney will agree to go to court.
Selecting the process you use is one of the first important decisions you and your spouse will make for your family. Regardless of the process you choose, it is possible to fashion your own settlement and to stay out of court. Contact Chase, Berenstein and Murray Counselors at Law to schedule a confidential consultation.