WHICH PROCESS IS RIGHT FOR ME IN MY DIVORCE?
There are four basic paths through the divorce process:
1. NON-CONTESTED DIVORCE: In this path the husband and wife decide on their own how they will divide their property and debts, the custody of their children and how they will financially support their children and if any maintenance will be paid and under what conditions. After these decisions are made, one party typically hires an attorney who is then responsible for formalizing the agreement and getting all necessary documents prepared to finalize the divorce.
Pro: It is a cost effective way to get a divorce due to the reduced legal expense that typically comes with a non-contested divorce. Also, if the parties are able to reach an agreement through civil communication it can be less traumatic and damaging on their children than a more highly contested divorce.
Con: Parties who enter into agreements without the assistance of experienced and competent legal counsel can often reach agreements with long-term negative impacts on their children and/or a negative financial impact on their future. This can be done unknowingly or as a result of pressure from the divorcing spouse or occasionally a third party. If you have one or more children or have any questions as to your rights in the division of property, debts or if you or your spouse could be entitled to maintenance, it is critical that you consult with an experienced attorney who specializes in the area of Family Law prior to finalizing any agreement.
2. MEDIATED DIVORCE: In this process the husband and wife meet with a third party who is trained in mediation to help work through the decision-making process. This process can take as little as one mediation session in a divorce with limited issues. However, multiple sessions are often necessary to work all of the issues necessary to reach a complete and enforceable Marital Settlement Agreement. The mediation process can take place voluntarily through the agreement of the parties prior to the divorce process or can be ordered by the Judge after one party has filed. If an agreement is reached, either the husband or the wife will then hire an attorney to draft the original Petition and file all necessary documents to finalize the divorce. The other spouse has the option to hire an attorney to review the documents prepared. Issues relating to the Court's authority to Order mediation, qualifications and duties of the mediator are governed by Missouri Supreme Court Rule 88.04 - 88.08.
Pro: A successful mediation allows the parties to have a greater control over their future, through their input in the final terms of their divorce, with hopefully reasonableness in expense. Studies also show that parties who are able to reach an agreement in a civil manner are more likely to accept the agreement and behave in a way, post-dissolution, that has fewer negative implications on themselves and their children.
Con: Mediation is not for everyone. It requires not only a competent and qualified mediator, but it requires both the husband and wife being committed to work through the divorce process through cooperation and in the light of what is the most workable outcome for not only themselves but for their spouse and children. Too much animosity by either spouse can often prevent successful mediation. Further, the dynamics of the parties' relationship can often prevent successful mediation. For example, a relationship with a real history of domestic violence is rarely successful through mediation. When deciding on the mediation process it is critical that you choose a well-qualified mediator.
3. INTERDISCIPLINARY COLLABORATIVE LAW: In this process each party is represented by an attorney. The attorneys agree to assist their clients in resolving disputes without litigation. The parties and their attorneys meet face to face in a four-way settlement meeting and work through the issues in their divorce to hopefully reach a settlement. To assist them in reaching a settlement third-parties can be brought into the meetings such as a financial advisor or counselor. Each party must agree that they are fully disclosing any relevant information including financial information.
Pro: Much like mediation, a success allows the parties to have a greater control over their future, through their input in the final terms of their divorce, with hopefully reasonableness in expense.
Con: If both parties are not committed to the process it can't be successful. For example, if one party refuses to fully disclose their income or financial assets and liabilities an agreement cannot be reached. And, without the assistance of a Judge, there is no remedy to compel either party to make complete disclosure. In this scenario it is not only up the parties to be fully cooperative but their attorney's as well. If either party selects an attorney who is not committed to the process the chances of success are limited.
4. CONTESTED DIVORCE: In a contested divorce the husband and wife cannot reach an agreement on one or any of the following issues: custody, child support, maintenance, property division, debt division or attorney fees. A Petition for Dissolution of Marriage is typically filed in your local Circuit Court, and your case is assigned to a specific Judge who moves the case through his docket until it is ultimately set for trial. Typically, each party is represented by an attorney who is ethically obligated to look after their client's best interest and to advocate for their position. The terms of the divorce can be settled by the parties, with the assistance of their attorney, at any time up until the trial. If the parties are unable to reach a settlement, the Judge will enter an Order and Judgment on all issues including child custody, child support, maintenance, property division, debt division and attorney fees. This is done after a trial on the merits where each side is allowed to testify and present evidence to support their position.
Pro: Each party is afforded to opportunity to hire legal counsel to advise them on all aspects of their divorce throughout the pendency of the divorce. It is their lawyer's job to navigate them through the divorce process and to educate them on their rights and responsibilities during the divorce process and after its conclusion. In a situation where the parties are unable to communicate each other or they have unsuccessfully attempted to resolve their divorce through any of the other paths previously mentioned in this article, this path provides them with a conclusion on all issues. In a situation where the children are at risk or there is simply a hotly contested custody issue the Judge is required to enter orders based fundamentally upon the children's best interest.
Cons: The husband and wife can lose control of the outcome of the divorce if they leave it up to the Judge's discretion. It can be understandably difficult for the Judge to make completely informed decisions based upon facts they perceive from evidence, which can be limited due to evidence rules, even if the trial takes multiple days. Further, the Judge is often limited to the remedies he can order of the parties which could otherwise be reached through an agreement and are a better fit under the husband and wife's circumstances.
A contested divorce can be a lengthy and expensive process. The cost and time involved in a contested divorce are often the most frequent complaints when a divorced spouse discusses his or her divorce. The docketing system that each judge uses to move their cases along can vary greatly between individual Judges. Even the most experienced and well intentioned lawyer is often limited by what they can do move a case quickly through this system. However, this process can be further exacerbated by the wrong lawyer causing further delay by his or her actions or failure to act. The cost of a contested divorce can vary depending upon the issues in your case and the lawyer you choose. When selecting a lawyer it is also important that there be an upfront discussion and fee agreement which details the costs you will incur. It is important to realize that there is no cause and effect relationship between the cost of your lawyer and the quality of your representation. The choice of a lawyer is an important one. Anyone considering a divorce should be comfortable that they will be treated fairly and professionally.
Written By: Douglas G. Bellon, Attorney at Law, Certified Mediator, and Divorce Practitioner specializing in contested divorce litigation
