Divorce Options
By understanding your options for a divorce process, you can restructure your family in a positive way.
Why is it important to choose the "right" option for your divorce?
Because you and your family are going to live the rest of your lives with the results of the decisions you make during the divorce process. By being educated on your options, you will be better prepared to make decisions that allow you to move forward … without regret.
Kimberly's practice is focused on family law with a singular emphasis on Mediation and Collaborative Practice to help families reach resolutions that meet the best interests of all parties.
Comparison of Collaborative divorce and litigation:
HOW DO THESE ISSUES GET DECIDED?
There are a number of approaches or "processes" that may be used to resolve these issues. The difference lies in the amount of attorney and court involvement, conflict and cost. Each issue may be resolved either by reaching an agreement that must be approved by the court or by having a contested hearing and having a judge make the decision. These models include:
- (1) traditional negotiation/litigation,
- (2) Collaborative Practice,
- (3) Mediation, and
- (4) pro se divorce.
TRADITIONAL/LITIGATION
Litigation is the traditional divorce process. Both parties hire attorneys who provide legal advice and represent their client in negotiations and court hearings. In this process, each attorney advocates positions based on the personal wants, needs and viewpoints of their client. The parties communicate mainly through their attorneys, rather than directly with each other, regarding their positions, proposals and counterproposals.
The process may involve the use of formal legal procedures, known as "discovery" to obtain financial and other relevant information. Discovery may include the use of depositions (a formal taking of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues. Each party may also hire experts to support their positions. These experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants and others.
Most litigated divorces are eventually settled, but substantial time and money may have been spent in the meantime. In addition, parties often find later that they are dissatisfied with the outcome and are more likely to return to court in the future to resolve new disputes.
COLLABORATIVE PRACTICE
In Collaborative Practice, the traditional approach of bargaining from a specific position, backed by threats of litigation and court intervention, is replaced by an approach that strives to settle cases respectfully. The approach involves legal counsel but eliminates the threat of or fear of court intervention at any stage.
This dispute-resolution process is based on a pledge in which both parties and their attorneys contractually agree that the attorneys will not go to court. The key ingredient of Collaborative Practice is that the divorce process takes place in meetings where the parties and their attorneys are present, often with other supporting professionals. All parties sign a Participation Agreement that sets forth the principles and guidelines for collaborative practice.
The Collaborative Practice approach to divorce is based on three principles:
- A pledge not to go to court
- An honest exchange of information by both spouses
- A solution that takes into account the highest priorities of each spouse and their child/children
The key element of the Collaborative Practice process is a commitment by the parties to work toward a negotiated settlement in a structured, non-adversarial setting that protects privacy and confidentiality, rather than resorting to court intervention. Even though the process is gentler and often well received by those who embrace it, the collaborative process is not necessarily the best approach for everyone. The divorcing parties must be willing to work honestly, openly and in good faith to arrive at a resolution without court involvement. It is also necessary that the attorneys involved have specific training in this approach.
To address the legal, emotional and financial matters of divorce, the collaborative practice process works best with a team approach, comprised of financial and mental health professionals. The goal of these professionals is to educate the parties and explore settlement options to meet the needs of the parties and their children.
This process encourages creative problem solving, win-win negotiations, and resolutions that meet the needs of all members of the family. International experience shows that the collaborative divorce process produces greater satisfaction of the parties and better results for children. Participants are also less likely to return to court to litigate issues in the future. The most significant aspect is that the parties are directly involved in the process and retain control over their outcome. For more information on Collaborative Practice please see www.collaborativepractice.com, www.cpcal.com or www.abetterdivorce.com
MEDIATION
In Mediation, the parties hire a neutral third party, the mediator, to assist them in reaching agreements about their divorce. The mediator can provide information about the divorce process and guide a discussion to help resolve issues. The mediator does not represent either party and the parties must hire their own individual lawyers to advise them in the process.
In Mediation the parties communicate with each other directly, in the presence of the mediator. The goal of Mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle. Mediation generally works best for couples when there is equal knowledge of their financial situation and the ability to advocate for oneself and make decisions together.