For couples considering divorce, once one or both of you have decided to end the marriage, the single most important choice that will need to be made, together, is how you will go about getting divorced. This means: which actual process you will utilize to end your marriage? That’s because, even though divorce is a legal procedure, the process of unwinding the legal contract of marriage is not only a legal one. Divorce has huge emotional and financial ramifications, and affects not just the parties ending their marriage, but everyone around them, including children, and extended family and friends, for many years to come. Therefore, taking the time to research and understand the options available before making the decision of which process to use is vital in achieving the outcome you hope for. Each option should be considered based on your family’s unique situation.
With that said, this article is intended to present the basics, as well as some of the advantages and disadvantages of each of the four divorce-process options available to couples.
Do-it-yourself (DIY) or direct negotiation is the simplest and usually, the most cost-effective process for getting a divorce. You and your spouse negotiate the terms of your divorce directly with each other, with little or no professional assistance. The most basic version of DIY involves only the divorcing partners, with help from the family court, family-law facilitator (if one is available in your county) or online resources. Additional professionals, such as consulting attorneys, financial specialists or counselors/coaches can be added where the need arises, but the bulk of the work in coming to an agreement is done solely by the divorcing spouses.
The advantages of a DIY divorce are that the spouses can negotiate whatever type of settlement best suits them, which means ultimately, that they control the outcome. Additionally, DIY is the most cost-effective method, at least initially, with filing in California costing about $435 per person, depending on the county.
Some of the major disadvantages of DIY divorce are that because you generally do not have professional guidance, it is common to make mistakes. While most do-it-yourselfers have fairly simple estates, the legal, financial and tax consequences of various settlement options may be largely unknown to them, and if mistakes are made, it can be challenging and costly to correct them. For this reason, it is generally recommended that if you do choose the DIY route for your divorce, you at least consult a neutral family-law attorney or mediator to look over your agreement before submitting it to the court.
Traditional representation is the divorce process that most people think of first, and is often referred to as ‘litigation.’ In this process, resolution is determined by application of the law to your rights, responsibilities and entitlements, and ultimately, perhaps by a judge. The most basic version of this model is that the spouses each has their own attorney to negotiate on their client’s behalf to reach a settlement. The vast majority of traditional representation divorces reach such a settlement, but If the attorneys are unable to reach a resolution, the parties end up in court where a judge decides, based strictly on the law.
The main advantage of traditional representation is a more defined timeline, with deadlines set by the court for certain decisions (in some cases). The court can also compel a party to act or not to act, which is not the case in other models, and the law provides a framework to address nearly all of the issues in the divorce. Protective orders are available in cases where domestic violence or substance abuse may be present, and enforcement sanctions may available where agreements are not being honored.
There are significant challenges with traditional representation as well. It is typically the most costly process, as conflict creates cost, and going to court certainly increases costs across the board. Also, traditional representation is the most adversarial method of divorce, where each side generally has a win/lose mindset; the effects of which tend to create more bitterness and acrimony. This often results in more hard feelings in the long-run and can significantly inhibit the couple’s ability to effectively co-parent down the line. In traditional representation, the lawyers do the communication and negotiation, which can be disempowering to the clients, especially as, ultimately, important decisions may be entirely left to someone who has no familiarity with your family’s specific needs.
Mediation is a resolution method which is determined by you and your spouse. It is facilitated by one or more neutral mediators who help define the issues, guide the gathering and analysis of information, generate choices, and negotiate a resolution. A mediator’s job is to facilitate your resolution, not to judge your decisions or make them for you. At its simplest, mediation involves the two spouses, and one neutral mediator. Attorney mediators can tell you about the law, and make educated guesses about what a judge might decide in court, but they can’t give you advice or tell you what’s best for you. If the need arises, such as for complex financial issues, or help designing a co-parenting plan, mediators will often suggest bringing in other professionals for extra support and guidance to help resolve those specific issues. Many mediators recommend that each client also retain his or her own consulting attorney to offer advice the mediator cannot, to advocate on behalf of each client’s interests, or to review any proposed settlement before each spouse agrees to it.
In mediation, you and your spouse control the process and the outcomes, and, with the help of the mediator/facilitator, can come up with solutions that are more creative in addressing specific challenges. By negotiating with each other, spouses can develop tools they can use later on when additional disagreements or issues come up, so that when they do reach resolutions together, those agreements tend to be more durable and more likely to be honored. Mediation is almost always less costly than litigation, is usually faster, particularly now, post-COVID, with all of the backlog in the courts. Moreover, agreements made in mediation are legally binding and fully enforceable, just as if they had been made by court order.
A mediator does not represent or advocate for either person, however, so clients can often feel they don’t have anyone looking out for their best interests, which can be a challenge. Too, the mediator may not be able to fully balance power, where there may be an imbalance. Each spouse will need to rely on his or her own capacity to negotiate in mediation, and this is rarely an appropriate process where intimate-partner violence, coercive controlling behavior, or active substance abuse are present. Additionally, because a mediator, unlike a court, cannot compel a person to make decisions, keep commitments, or keep deadlines for completing tasks, mediation can be challenging in cases where one party or the other is unable or unwilling to get these things done. In such cases, the process can be dragged out, and become more time-consuming and costly, particularly if the parties eventually fall out of mediation and end up in court.
Collaborative divorce is an alternative dispute-resolution method wherein the agreements are made by both spouses, outside of court, utilizing a team of legal, financial, and mental-health professionals who work with the entire family, including the children, to define their issues, gather and analyze information, generate choices, and negotiate a resolution.
Collaborative divorce is based on three guiding principles:
- The parties agree in writing not to go to court.
- Both parties engage in an honest exchange of information.
- Each solution takes into account the highest priorities of all of the parties, both adult and children.
In most cases, the team will include a lawyer for each spouse to help guide them regarding their own interests; a coach, or coaches, to help with communication, managing emotions and designing a parenting plan; and a neutral financial specialist to help gather and organize financial information, and help design creative financial-division solutions. Each team member must be trained in the collaborative approach, follow collaborative protocols, and work together as a team for the benefit of the entire family, both now and in the future.
Advantages of collaborative divorce are, first, that the spouses control the outcome, with the aid of, and making optimal use of each professional’s unique knowledge, training and experience. This makes it easier to design customized solutions and create buy-in from both spouses, which is vital to making agreements more long-lasting and durable. The team in a collaborative divorce must agree to a disqualification clause, which states that should the collaborative method fail, and the spouses end up in litigation or court, no member of the team may participate in any capacity going forward. This is an important aspect of the collaborative process, as it incentivizes everyone involved to continually take less adversarial positions and work towards finding solutions to the problems that arise.
One of the challenges of collaborative divorce is upfront cost, which can be greater than other methods simply due to the number of professionals involved. However, since it is a fact that conflict creates cost in a divorce, the less adversarial nature of collaborative divorce often ends up creating cost savings in the end. As with the other methods which do not involve going to court, participation is voluntary, and no court orders or court-imposed deadlines are available in collaborative divorce.
It is important to understand for anyone going through, or considering a divorce, that there is no one-size-fits-all answer about which method should be used to end a marriage. Each process has its place, and each couple has a unique set of circumstances that will inform their own decision. After the decision to actually end the marriage, the choice of which method to use is probably the most important one that will need to be made, because it will shape everything that comes afterwards. For this reason, it is vital to really take the time to research the various choices, and make the decision that’s best for your unique family circumstances.
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