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Low-cost, less-stress 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 option."

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.

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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 be necessary.

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.

-- Posted: Nov. 10, 2003
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See Also
Divorce finances may call for a planner
Got a prenup? How about a postnup?
Pre-divorce do's and don'ts
Financial advice glossary
More advice stories

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