Now that the decision has been made to divorce, you come to another important decision – how will you accomplish your goal? The good news is that most couples come to an agreement regarding how to divide their property and care for their children after divorce. But how you get to that agreement can make a huge difference about how you emerge from the divorce process. Some people emerge bitter and angry and, if they have children, unable to successfully co-parent. Others are able to put their anger and disappointments aside and emerge with a positive view of themselves and their ex-spouse. A lot depends on the route you take and the choices you make about the process you follow to get to the goal. Here are the options that are available to you.
“Kitchen Table” Settlements
This settlement method can be simple. The couple sits down “at the kitchen table” and work out an arrangement that satisfies each of them. The agreement can be taken to a lawyer to be put into legal form, or used to complete do-it-yourself divorce forms.
Unlike some other divorce options, this method of reaching agreements can produce inexpensive, quick, private agreements for couples who do not have children or substantial assets. Without the benefit of legal advice, however, you may not know if you are giving up valuable rights. It is also easy to “re-invent the wheel,” or make mistakes that someone with family-law experience could help you avoid. People often find, upon taking the agreement to a lawyer, that questions will arise that may cause one or both spouses to change their agreement. If the spouses both do not have equal information and equal power in the relationship, one person might not get his or her needs met.
The documents that courts require in order to grant a divorce can be very complicated. A court can send you away and refuse to grant a divorce if the paperwork doesn’t meet the requirements of the law. Bookstores and online resources sell forms that can be used to handle a divorce without attorneys. Forms may also be available at local law libraries. Simple forms for people without children or substantial property are also available online without charge. But not all forms are equal; some can create more problems than they solve. When children and real estate or other major assets are involved, the forms may not be detailed enough to do what you are trying to accomplish and may cause you problems in the future.
Early Intervention Mediation
Mediation is assisted settlement negotiation. Mediators don’t take sides, and are used for the sole purpose of trying to help people reach a settlement. Many couples find working with a skilled mediator at the start to be a helpful and satisfying way to settle the issues in their divorce. A mediator is a neutral party, not necessarily an attorney, who can help you resolve all of the questions that a court wants addressed in a final divorce decree. Even if the mediator is an attorney, he or she cannot give the parties legal advice. Often couples who choose this route to resolution will hire an attorney or attorneys to give them legal guidance before or during the mediation process, which usually is conducted in a series of joint meetings with the mediator.
If you choose to follow the Collaborative Divorce model, you and your spouse must agree in writing that no one will take any contested issue to court. You each will have the assistance of your own attorney who has been trained to work collaboratively with you and with the other attorney and with any mental-health and financial collaborative professionals who you have agreed will be helpful to you in the process. This “Collaborative Team” focuses its attention on finding ways to restructure your family so that you and your spouse get your needs met to the greatest extent possible. If you both decide to follow the collaborative road to divorce, you must sign an agreement that you will honestly share all information available to you about your property and children. You will agree to work together with your attorneys and other professionals to come to an agreement that meets both of your most important goals and concerns. In the event that you are not able to settle using the Collaborative Divorce model, litigation attorneys can still take the case to court, but the collaborative lawyers must withdraw and cannot continue to represent you.
Collaborative Divorce is conducted in a series of joint meetings in which you and your lawyers, and possibly other professionals, sit down together in the same room. Under Texas law, everything that is said in these meetings is confidential and can never be brought up in court. Participation in the process is voluntary, and can never be ordered by a court. Either one of you may choose to end the process at will, and both of you must agree to any resolution that is reached.
Litigation is what most people think is the only way to settle matters when people can’t agree. In litigation, decisions can be made for you by a judge, or sometimes a jury if you cannot make the necessary decisions with the assistance of your attorneys. There are very strict rules about what information may be presented to the decision-maker and things that you may think are very important for the judge or jury to know may never be heard because the judge decides they are “not relevant”.
Litigation does provide resolution for people who cannot find any other way to settle their differences any other way. The court system is the only way to “force” a reluctant party to deal with family law issues. However, litigation often focuses on the negative aspects of divorce and other family law matters. In comparison to some other divorce options, it causes people to focus on how they are “right” and the other is “wrong,” when they really may just have different ideas about how their lives should look after divorce. Even though most cases settle before they ever go to trial, the process of preparing to go to trial, if necessary, can cause long-term damage to the relationship between the parties. The financial cost can be considerable.
Although seldom used, arbitration is another road to resolution that is available in a divorce, if both spouses agree to utilize the process. An arbitrator is a hired judge who hears the evidence that would otherwise be presented in a trial, and the arbitrator’s decision can be binding or non-binding, depending on the agreements of the parties. Like Collaborative Divorce, an agreement to arbitrate in a family law matter must be in writing. An arbitrator can be hired to decide all of the issues in a divorce or just one or more. Unlike a trial to a court, the hearings before the arbitrator can be heard at times convenient to the parties and their attorneys. If everyone has agreed that the arbitrator’s award is binding, the court must enter a judgement that reflects the arbitrator’s decision. A trial to an arbitrator may be informal, or may follow all of the rules of evidence and discovery that are required in a trial to the court, depending on the signed agreements. An arbitration can be heard before one judge or three judges, depending on the signed agreements. Either way, the arbitrator must be paid for his or her time, unlike a judge who does not charge for his or her services.