METHODS OF DIVORCE

Like all new endeavors, when you go through a divorce, you’re walking through uncharted territories.  People who have been divorced will tell you they would have done things differently if they had known at the beginning what they know now.  At Financial Resolutions, we educate you about the divorce process so you have the advantage of doing things right the first time.  Many people think the only way to divorce is to immediately retain a divorce attorney.  While this is often the best choice, we make you aware of the alternative methods of divorce such as mediation and collaboration, and help you choose the method which is best suited for your personal situation. 

Regardless of which method you choose, we help you prepare questions for your attorney as well as help you prepare the financial information your attorney will need.  This allows you to utilize attorney time wisely.  We can also help educate you about your own financial situation and explain some facts about divorce so you can be more proactive in your divorce proceedings and thus in better control of your own financial future. 

The method you use to divorce will play a significant role in determining the total cost of your divorce.   Divorce costs in the United States vary, with the average cost estimated to be nearly $15,000.  The good news is that the cost of divorce can be managed.   It’s understandable and prudent to attempt to divorce using the least costly method possible.  However, cost should not be the prime reason for choosing a method in a contested divorce.  Choosing the “cheapest” method is not necessarily advisable considering the long term financial consequences resulting from a poor divorce settlement can never be “undone”.    When it comes to divorce, you often have to spend money to save money.  You only get one chance to “do it right”.

Listed below are the 4 most common methods of divorce.  We’ve presented them in order beginning with the method which generally takes the least amount of time and is the least expensive, and ending with the method which often takes the longest and is the most expensive.
Do it Yourself  (Pro Se Divorce)

There’s no law which says you have to hire an attorney in order to get divorced.  Couples often choose to divorce without the help of any divorce professionals, to save time, money, or both.   In order to divorce this way, both parties literally have to negotiate, reach a settlement, and arrange for their own divorce papers to be written up and filed.  People often find divorce kits on the internet which include legal forms which cover a variety of details such as alimony, name changes, personal property and real estate.  They then file the finished documents with the court and make an appearance before a judge.  The divorce becomes final when the judge signs the documents.  As can be imagined, this method works best for uncontested situations, and short-term marriages with no children, few complications, and little assets.

Financial Resolutions’ role in a Pro Se divorce     While couples choosing a “do it yourself” divorce generally have less complicated financial situations, they often need assistance with finances in order to come to a settlement.  We can:   

  • Assist in the preparation of the marital balance sheet
  • Assist in the preparation of pre- and post-divorce budgets
  • Develop options for dividing assets and liabilities in a way that meets each spouse’s needs
Mediation

Many couples simply cannot afford to hire a lawyer and are forced to look for other options to reach a settlement.  One such option is mediation.  Mediation is a voluntary process where an impartial 3rd party facilitates the negotiation of a mutually beneficial divorce settlement agreement between a divorcing couple.  The mediator’s role is to facilitate communications between the parties, assist them in focusing on the real issues, and work with them to develop viable settlement options.   In mediation, the divorcing couple dictates the terms of the agreement, not the mediator or a judge.  The goal of mediation is to have the divorcing couple arrive at a mutually acceptable settlement agreement themselves, without going to court.

While many mediators are also attorneys, when they are working as a mediator, they cannot give legal advice to the divorcing couple.  Their role is to try to reconcile the opposing points of view of both parties and search for common ground.   We advise couples who are mediating their divorce to each hire an attorney to support them through the process.  This way, each party has the protection of an attorney but still retains the ability to control the decisions that are made in face-to-face meetings with their spouse and the mediator.   We advise couples to carefully choose their attorneys as many people believe that in order to have a successful experience with mediation, both parties must hire non-adversarial attorneys, and must keep the channels of communication open.

Mediation is a modern, less adversarial approach to divorce which many feel is a more effective, sensible alternative to the traditional ligated divorce which involves judges and courtrooms.  Mediation gives the divorcing couple the opportunity to find areas of agreement and incorporate them into solutions.  At least theoretically, mediation decreases the hostility which might result using litigation.  Couples often come away with their self-esteem intact and an equitable property settlement.  In addition, because the couple has formulated their own agreement, they tend to be more committed to the terms of the agreement.

When a couple chooses mediation as a method of divorce, the total costs of their divorce are often significantly less than with other methods of divorce because the process is streamlined.  The need for discovery can be eliminated if both parties agree to give each other any information they have with respect to finances or other relevant issues.   In addition, there will be no trial.  The mediator will write up a very thorough summary of the agreements reached, and in some cases, may draft the settlement agreement.

Financial Resolutions’ role in a mediated divorce    We assist in the determination of monthly support payments which are sustainable and equitable to both parties.  We help seek out creative solutions to best allow both spouses to achieve their short and long term financial goals.  We explain the tax implications of various property division scenarios. 

In addition, we use our divorce financial software to present "what if" scenarios which show the effects of changes in filing status, dependency exemptions, and tax credits on each spouse's cash flow.   We also use our tax expertise to recommend ways to structure settlements to take advantage of tax laws, often resulting in both spouses ending up with a better settlement.  Experience shows that working as a team in this environment can expedite the settlement process and help both spouses receive an equitable settlement which they can understand.  Each spouse can also start their new life as a single person with a realistic budget and a detailed financial plan.
Collaborative Divorce

Unlike the traditional process of divorcing through the court system, Collaborative Divorce uses a team approach to help the divorcing couple reach a settlement out of court.  The collaborative team consists of two attorneys, one financial professional, and one or more mental health professionals who are all trained in the collaborative process.  Each team member assists the family in his/her area of expertise, and then works integratively with other team members to help families reach an amicable settlement where both parties’ interests are met to the fullest extent possible.

The collaborative process is non-adversarial. The divorcing couple signs a participation agreement stating they agree to avoid using the court system to resolve disputes.  If for any reason the couple fails in this process, the entire team of professionals must withdraw from the case.  The couple will then usually pursue a litigated divorce and hire new attorneys.  Because this is very costly, couples choosing collaborative divorce have an incentive to reach agreement through the collaborative process.

Although more professionals are involved in a collaborative divorce, it can be less expensive than it appears because the process is more efficient and productive.  There are no court fees for serving motions; only at the very end do the attorneys file their appearance in court.   Both spouses agree to openly share all financial information upfront, eliminating the cost of discovery and providing a level playing field for both parties.  In addition, the more compassionate nature of collaborative divorce often results in a less confrontational end to the marriage and ultimately, to a better post-divorce relationship.

While both mediation and collaborative divorce are less adversarial methods of divorce, there are some differences between them.   In mediation, the parties advocate for themselves while consulting with their own attorneys between sessions.  The mediator cannot give either party advice nor can they advocate for either party.  In collaborative divorce, each party is fully represented by an attorney throughout the process and is never alone.  This creates a safe atmosphere which can be especially important for a spouse who may not be financially savvy.

Financial Resolutions’ role in a collaborative divorce  We serve as a “financial neutral” on the collaborative divorce team.  Finances are addressed and budgets are created.  We analyze the numbers and provide alternative settlement solutions that suit both spouses’ needs.  We are available to explain the impact of any settlement proposal to each spouse, and often provide each spouse with valuable financial skills.
Litigation

The most traditional and most costly method of divorce is litigation. When a divorce is contentious, most couples hire an attorney to ensure that assets, child support, maintenance, and other issues are handled fairly and equitably.  In a litigated divorce, each spouse hires his/her own attorney who advocates for them, does formal discovery (obtains financial information from their spouse), files court motions, makes court appearances, negotiates on their behalf with the opposing attorney, and possibly hires other experts. There are court fees, filing fees, etc.  Litigating attorneys may or may not work well with the opposing attorney to reach an expeditious settlement.  When they don’t, legal fees can become excessive.  If a settlement is not reached during settlement negotiations and pretrial hearings, the attorney will eventually take the case to trial.  The vast majority of cases never make it to trial since settling out of court is almost always preferable to a judge deciding the case.  The cost of this method of divorce ranges significantly and can become excessive if the two parties cannot find a way to compromise and reach agreement, or if one or both attorneys chooses to drag out the divorce to increase their fees. 

While divorcing through litigation is often the most costly method of divorce, often times it is the only viable option.  All other methods of divorce require at least some degree of cooperation between the parties, as well as the ability for the couple to communicate.    If at least one party to the divorce does not want the divorce, or is not willing to negotiate towards a reasonable settlement, litigation is the only option.

Financial Resolutions’ role in a litigated divorce    We offer an extensive menu of services to clients who choose litigation.  Please see the “Our Services” tab for a detailed list of financial services provided during divorce.

Disclaimer:  This is for informational purposes only and not meant to provide legal advice.  Only your legal representative is qualified to do so.



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