When clients talk to me about divorce, their focus is usually on the substance, that is, the decisions that have to be made on issues like legal and physical custody of their children, child support, alimony, and how to divide their property. It is, of course, critically important to make thoughtful and reasonable decisions on these topics. If both parties can make them together, a judge won’t have to make them instead. But what is the process for making these reasonable and thoughtful decisions?
- Litigation. If you go to a lawyer, the idea may naturally be that you will litigate your divorce. This means filing a complaint in court, going through all the procedures for discovery to find out what your spouse earns, spends, owns, and owes, and finally providing all that information to a judge, who makes the decisions. However, there are other processes that people don’t always consider.
- Mediation. Mediation is a process in which both parties sit down with a neutral mediator who facilitates their discussion. If they reach an agreement, the mediator may draft an agreement for them, or they may ask one lawyer to draft the agreement and one to review it. Then their agreement forms the basic guidelines that they will be governed by post-divorce.
- Collaborative Law. Another process is collaborative law, in which both parties have lawyers and everyone agrees to engage in problem-solving, rather than in litigation. They may also choose to have a financial neutral, who helps figure out the best financial options for the family, or psychologists who act as coaches to help them manage their emotions during a trying time, or a child specialist to assist them in making decisions for their children.
These three processes, litigation, mediation, and collaboration, are all accepted by the legal system. How do you choose? Well, your choice will depend on several factors. Your spouse’s willingness to engage in mediation or collaboration is fundamental, so if your spouse is determined to litigate, you can’t force another process. Your finances may impact your decision. But one element that influences your decision, often without being explicitly stated, is your own value system. Are you naturally a fighter, and do you believe that divorce is a battle to be won? Are you naturally a peacemaker, and do you believe in the possibility of cooperation and healing? And if you are a little bit of both, what process will best help you build a foundation for your future? Thinking about your values and hopes is important in divorce. You can’t control how your spouse feels, but you can stay aware of the values that drive your own decisions and try to have a divorce that is consistent with who you are.