When a couple makes the decision to separate and ultimately divorce, they often know from the outset that they do not want to go to court. Everyone has heard a horror story. One thing is certain, a judge will not have the time or information to take into consideration your family’s circumstances and needs the same way a negotiated settlement agreement can.
To maintain control of the terms of your divorce, you can negotiate, mediate, or collaborate.Each of these alternative dispute resolution processes provides couples with a confidential and discrete avenue to settlement without public exposure and maximizes control over outcomes. Nevertheless, they are different, nuanced processes. Couples do not need to be “amicable” to settle out of court, but they do need to be committed to the process and should not use the threat of court action as leverage.
While you and your spouse may have every intention of working out a settlement without the involvement of lawyers or other professionals, you both should consult an attorney and a financial advisor to understand what legal and financial issues you will need to discuss with your soon-to-be ex-spouse. A settlement agreement should be drafted and reviewed by independently retained lawyers for each spouse.
A Negotiation can be a direct conversation between you and your spouse, or it may be a more formal negotiation process between your attorney and your spouse’s attorney. It can be conducted through written offer letters, phone calls, or in-person settlement meetings.
In a Mediation, spouses jointly retain a neutral third party mediator to facilitate a face-to-face negotiation of their divorce settlement. A mediator can be, but need not be, an attorney. While spouses may bring attorneys to the mediation sessions, often they do not. Participants in a mediation are in control of their own outcomes—a mediator does not make any decisions for them. A mediator is not a judge or an arbitrator. An attorney mediator may explain aspects of the law as it applies to the couple’s circumstances, but that mediator should not advise either party of her “legal rights” or otherwise represent one party or the other.
In a Collaborative Divorce, each party separately retains a collaboratively-trained attorney to represent him or her in the face-to-face negotiation of a settlement agreement. There are two attorneys and two clients present for the negotiation sessions. The collaborative process does not include a mediator. Unlike in a more traditional negotiation, the attorneys and the spouses sign an agreement that they will not litigate (meaning start an action in court) or threaten to litigate the divorce. If the collaborative process breaks down without a settlement agreement, the collaborative attorneys drop out of the case and the parties retain new litigation counsel. As needed, a collaborative divorce will utilize an interdisciplinary team approach. The parties can jointly retain a neutral financial advisor, a divorce coach with a background in mental health and/or a child specialist. While adding team members increases the expense of the divorce, the input can be invaluable. The costs savings from hiring one set of experts rather than each party retaining separate experts and having the experts then duel with each other are significant.The collaborative divorce process offers a structured negotiation process, which can be well suited for couples who want to reduce the negative impact of their divorce on their children and the family in general. At the same time, the parties feel secure and protected by having an advocate acting alongside of them and on their behalf.
An out-of-court resolution necessitates a willingness of each party to participate in the process, gives parties maximum control over their outcomes, protects the privacy of the family, puts the children’s needs at the forefront, results in a more durable settlement agreement, reduces the overall cost of the divorce (financially and emotionally), and provides a shorter timeline than a litigated divorce.
This article is made available for informational purposes only by Kimberly Gantcher Spodek PLLC, and should not be construed to be formal legal advice. By reading this article, you understand that there is no attorney client relationship between you and the firm. The content of this article should not be used as a substitute for obtaining competent legal advice from a licensed professional attorney.
Kimberly Gantcher Spodek is a member of the DailyWorth Connect program. Read more about the program here.