ONE SIZE DOES NOT FIT ALL: THE DIFFERENT WAYS PEOPLE DIVORCE
Whether people want to go strictly by the rules or would prefer to tailor their divorce to their preferences, and whether they can get along during this process, typically determines the choices they make about which way they will divorce. Here are the ways that people divorce:
1. Hiring An Attorney
The way that most people think that other people divorce is to litigate — to use attorneys. I was surprised to learn that in Colorado more than 50% of divorcing couples do not use attorneys. Many people can not afford attorney’s fees. Some people do not have complicated matters that require attorneys. And, many people fear that family law attorneys will ratchet a divorce into a nasty, back-biting mess. We have all heard stories where people purposely hire attorneys to be very aggressive and “win” their divorce. I can refer you to many excellent divorce attorneys who steer away from unnecessary conflict and who work hard to educate and advocate for their clients and to keep matters respectful.
It may be useful for you to know that when people do hire attorneys to divorce, they still usually do not end up in court. “Litigation is actually a legal term meaning ‘carrying out a lawsuit.’ “ This means that the legal protocols are followed with a legal professional. “The vast majority of all divorce cases (more than 95 percent) reach an out-of-court settlement agreement. (https://www.forbes.com/sites/jefflanders/2012/04/24/the-four-divorce-alternatives/#21d2ef2920ae)
Who decides to go straight to using attorneys for divorce? The majority of people who use attorneys to divorce want legal guidance on dividing time with their children or significant amounts of money, have significant concerns about their partner’s ability to safely parent their children. Part of the reason why divorce with attorneys have a bad rap is that people who are already into or who are headed into a high conflict situation, go to attorneys and often their attorneys can not reign them in.
Frequently people that go to court anticipate that they will make important points about their spouses wrong-doings, and that they will show the court what a bad person their spouse is and how unfair they have been treated by their spouse. This is not what happens though. It is not the judge’s job to make decisions about one’s family based on hurt feelings and bad behavior. The judge’s job is to get the legal matters at hand dealt with. That means settling the major issues. Whether a spouse has had an affair, or curses in front of the children, is not relevant for how to move a case to dissolution and whether that person is a decent parent unless their behavior has directly harmed the children or would harm the children going forward.
2. Collaborative Divorce: The Best Way to go (usually) if you Want to Hire an Attorney
The newest and perhaps least well-known way for people to divorce is through a process called Collaborative Divorce. Begun in 1990, this is a process where each individual in the couple hires their own Collaboratively trained attorney. Collaborative Divorce was created by an attorney who was appalled by the amounts of money that people were spending on divorces that went to court as well as by the way the legal profession supported battles between divorcing parties rather than a process that was as supportive as possible to the people going through it.
What makes Collaborative Divorce a great way to go is that in this process the divorcing couple are the architects of their divorce. Rather than relying on “rules” and other people to tell them how to do this, they have a team supporting them to think about their unique family and their particular family needs and how to address them in this big split.
Couples that choose the collaborative divorce process must be committed to working in their family’s best interest — whether they have children or not — and to compromising and using creative solutions in moments when they are struggling to come to agreements. Collaborative divorce, even more so than mediation in many cases, gives the couple control of their divorce. A team of professionals supports a couple to divorce in a way that is in their and their family’s best interest. In addition to each spouse having their own attorney there are typically one or two professionals on the team that are considered “neutrals”: the Collaborative Divorce Facilitator, which is a role that I fulfill, and the Certified Financial Divorce Analyst. (For more information about the team or the process, go to Collaborative Divorce or to either of these websites: https://www.collaborativepractice.com/what-collaborative-practice or https://ccdp-law.org/what-is-collaborative-divorce)
When a couple signs paperwork with their attorneys to do a Collaborative divorce, they agree that they will not go to court. Historically, the biggest drawback of Collaborative Divorces is that if a couple can not work out all of the matters that need to be decided in their divorce, and they “quit” the collaborative process, they need to start the whole divorce process over with new attorneys. Their Collaborative attorneys will not represent them in court. There are a few attorneys in Colorado now that are advocating that the Collaborative paperwork be changed so that if the collaborative process isn’t 100% successful, for example, if 80% of the decisions are agreed upon but 20% are not, the divorce can still be finished in a collaborative setting. They suggest that their clients use an arbitrator that is collaboratively trained to come in and make decisions about the undecided matters, as judge would in court. This would enable the couple to keep their team and decisions rather than having to start over with different attorneys, which can be a tremendous additional expense.
One concern that sometimes prevents divorcing couples who want to use attorneys from going the Collaborative route is that it can look more expensive up front than solely using attorneys because of the team meetings with 2-4 professionals all charging hourly rates. However, hiring non-collaborative attorneys can lead to couples going to court which ultimately is much more expensive than most Collaborative cases. Also, in Collaborative cases, some meetings are done with just one professional, which originally did not happen with Collaborative cases.
If you or your spouse is not interested in or able to work amicably Collaborative Divorce would not be a good fit for you. If you both truly want to work out your divorce as well as possible it likely is a good fit for you. If committed to working collaboratively, people with, or those married to people with significant mental illness, or addictions can sometimes successfully use the Collaborative Divorce Process. One statistic that I found is that 80% of Collaborative divorces are successful.
If you decide to do a Collaborative Divorce make sure to choose professionals who have a solid collaborative reputation.
More information on Collaborative Divorce.
3. Mediation: Choosing it from the beginning or being mandated to go
Many couples choose to mediate their divorce without using attorneys. Mediating this way is chosen mostly by people who feel that they can work together well enough to make their major and minor decisions directly with each other with the support of a neutral party, and they aim to stay out of court. A mediator, even if she or he is an attorney, can not give legal advice, though they need to be well-versed in Family law. Because they can not give legal advice, it is highly recommended, and every mediator should tell this to their clients, that before signing a divorce agreement, each of the parties should show the agreement to their own attorney that they use specifically for this purpose to make sure they have a fair enough agreement.
Currently, it is mandated in Colorado that divorcing couples mediate before going to court. For example if you are getting divorced and you and your partner are unable to work things out with the help of your attorneys, before taking up the Court’s time you must go to mediation to try to work out your differences and make decisions about your divorce.
4. Kitchen Table Divorce
This is the most common way to divorce. Its difficult to get accurate current statistics on how many divorcing couples conduct their divorce completely on their own. Most people can not afford to use attorneys. Many people opt not to because using attorneys is often associated with unpleasant battles. If you feel that you and your spouse do not need professional support to divorce, you can obtain the paperwork necessary to divorce from Staples or Office Depot, or for free online. Generally it is wise to have a divorce professional look over your paperwork before you sign it. There are some professionals that think Kitchen-Table Divorces are ill-advised because if professionals are not consulted people can give up too much, or take too much, etc. Other professionals that think if they remain amicable and fair enough, Kitchen-Table divorces are the best way to go. I have worked as a divorce coach with several couples who did Kitchen-Table divorces.
5. Pro Se
Pro Se literally means “for one self”. When people are pro se, it means that they are representing themselves in a legal matter rather than using the services of an attorney. A Kitchen-Table Divorce seems technically to be pro se though the phrase pro se is affiliated with folks that go to court without legal representation.