alternatives to divorce court
Many couples find that mediation
makes it easier for them to continue a relationship. This can be
crucial if ex-spouses are sharing child-rearing duties. But it's
not for everyone.
"It's a great option,
but my general rule, is that it works when there is parity in the
relationship," says Woodhouse. "When each party has equal
bargaining power and is willing to negotiate, mediation is a great
Mediation is allowed in all
50 states. Anybody can enter into mediation and then go to court
with an already agreed-upon settlement.
Some states require mediation
in divorce settlements involving children. It also may be mandated
on a court-by-court basis. For example, if a court is overwhelmed
with a backlog of cases, judges may decide to order mediation as
a first step to reduce the number of divorce cases that make it
to court. And just because mediation is mandated, that doesn't mean
a divorce case still won't end up in the court.
Agreeing to end it together
Collaborative law is a twist on mediation and has become more
popular in the last decade.
As with mediation, each spouse
hires a lawyer, but no mediator. Negotiations generally are a four-way
affair, with the couple and respective counsel sitting around a
table to hash things out. It's up to the couple to do the negotiation
with assistance from their lawyers.
The big difference: Before
the collaborative process begins, spouses and their lawyers sign
an agreement that prohibits them from going to court. If a decision
on the breakup cannot be reached, then the lawyers hired for the
collaboration are dismissed and the divorcing couple must look for
other legal representation.
The rationale in barring the
collaboration lawyers from going to trial is to foster an environment
where everyone, spouses and lawyers, works toward the same goal:
an equitable settlement.
Not everyone agrees that collaboration
works as envisioned.
James M. Andrews, a partner
with Blank Rome LLP, a New Jersey law firm, is a fan of mediation,
but doesn't see why collaboration bars the original lawyer from
representing the husband or wife if negotiations fail and the courts
must rule on the divorce settlement.
"If you choose an lawyer
that's good at mediation, he's also generally a good matrimonial
lawyer," Andrews argues. "Collaboration favors the lawyers,
not the clients."
Like mediation, collaboration
is far less expensive than traditional divorce proceedings, primarily
because negotiations are conducted around a conference table, not
in a courtroom. Again, each party typically volunteers information
and experts are shared.
"The benefits of collaboration
are that it's less expensive, since there isn't a formal discovery
and people use their Sunday school manners," says Melinda Hartman
Eitzen, an lawyer with McClure Duffee & Eitzen LLP in Plano,
Texas. "Clients are much more involved, it's a cheaper solution
and it happens to be better for the family."
How much less expensive is
collaboration vs. a regular litigated divorce?
While it can vary wildly due
to the complexity of the case, Eitzen says her firm's usual retainer
for collaboration is about half its fee for a litigated divorce.
State law varies when it comes
to collaborative divorce settlements. Check with your local courts
or state bar association to find out the local rules.
Collaborative law, like mediation,
isn't for everyone. Each side has to abide by the agreement to work
together for a settlement. If a spouse is out for revenge or won't
negotiate, then a more traditional settlement via the courts may
Hiring a legal overseer
Sometimes a little bit of legal aid can go a long way in dissolving
a marriage. Woodhouse is a big fan of this approach, where a lawyer
is hired to provide limited help in hammering out a divorce agreement.
Instead of paying top dollar
for the lawyer to do everything, you lay as much of the legal groundwork
as possible. Then you pay the lawyer to review your work or carry
out tasks that you can't, or don't want to, do. Your savings depend
on how much groundwork you're willing to take on vs. how much work
you decide to shift to your lawyer.
According to Woodhouse, there's
a wealth of information and assistance for people who want a do-it-yourself
divorce. Her publisher, Nolo Press, specializes in legal books for
the layperson. Your county's court system probably has a Web site
that lists resources or information. State bar associations also
are a good place to look.
Divorce counsel a la carte
works well for partners who know how they want to split up and simply
need to put the settlement into the appropriate legal language.
Do-it-yourself divorce isn't
a good idea when things might get messy. And it's definitely not
for folks with demanding careers, other time-consuming commitments
or who aren't comfortable handling the legal particulars. In those
cases, says Woodhouse, going to traditional divorce court might
make the most sense.
Jenny C. McCune
is a contributing editor based in Montana.