Choosing a Process - A Chapter from Marjorie Just’s book, “Divorce Decisions: Practical Ways to Protect Yourself, Your Children, and Your Wallet”
by: Marjorie Just, Principal
This chapter is about choosing the process through which you and your spouse can resolve and end your marriage. There are several different ways to get there. You will likely be guided and given advice about which process to choose by the lawyer you select, which I will discuss in Chapter 8, and perhaps by the mental health professionals you consult. It is helpful, when speaking to lawyers or mental health professionals, to have some ideas about the different routes you can take.
I tend to think of the various processes along a continuum or range, from the fastest, easiest, least expensive process (kitchen table), to the slowest, most hostile, most expensive process (full litigation). The options I most often discuss with potential clients are described in the figure below:
There is some debate about where on the spectrum the middle options should be placed, and there is a lot of shifting and overlap depending on the complexities and disputes in a particular case. But there is not much debate about the fastest, least expensive option (kitchen table) and the slowest, most expensive option (litigation).
There are reasons for choosing each process. The easier or faster solution may not produce the best outcome for you; it may not, for example, allow you sufficient time to learn about the family finances, or get a handle on what arrangement for your children would be in their best interests. On the other hand, it is better to know going in that litigation is not the only option and is, in fact, the slowest, most expensive option.
I describe each process briefly below, with its pros and cons, and then in the following chapters describe the various considerations and/ or alternatives within each process.
The Kitchen Table Definition
You and your spouse sit down alone together (not necessarily at the kitchen table) and discuss and arrive at an agreement without anyone else’s presence or input.
Pros
This is the cheapest and fastest way to go. No hourly rates to pay. If you know what you want, and you and your spouse can communicate well with each other and discuss the finances without a lot of rancor or stress, this may be the best avenue for you.
Cons
In this process, you have no protection or advice during negotiations with your spouse. If there is a significant power imbalance between you and your spouse, and you are the one with less power or knowledge of the family finances, you may agree to something you later regret. It may also be the most stressful avenue for you if you feel pressured or intimidated by your spouse. Summary
The kitchen table process can work well where the spouses are generally co-equals in terms of their knowledge of the finances and their power within the relationship, and where each spouse has obtained the legal advice he or she believes is needed, and can negotiate directly with his or her spouse. Where it may be a mistake is if a spouse attempts this process without first learning about her rights and obligations under the law. With couples where one spouse is controlling by nature, particularly concerning the family finances, the more controlling spouse may try to pressure the more submissive spouse into going this route, and not involving lawyers.
Mediation
Definition
A process of dispute resolution by which you and your spouse meet with a third individual whose job it is to facilitate your communication and attempt to bring you to consensus. A mediator’s expertise is in bringing people who appear to disagree to discover areas of agreement or compromise, and in many cases to propose ideas through which each party can be satisfied. There are many different methods of mediation, and different backgrounds of mediators, some of which I discuss in more detail in a later chapter.
Pros
The parties share the cost of one mediator, rather than each paying for his or her own lawyer, so it can be less expensive than traditional representation, and is certainly less expensive than litigation. Skilled mediators can be extremely successful in resolving cases. Many courts around the country order parties to attend mediation before trial, and the success rates in the jurisdictions where I practice are very high. If the parties voluntarily exchange the relevant information, and if each parry has an idea of what he or she wants, mediation can be a very efficient and quick resolution to your case.
Cons
The mediator is not there to protect you or give you advice. The mediator is there to bring both of you to agreement. If that agreement is achieved as a result of your compromising 80 percent and your spouse only compromising 20 percent, then that is how it will turn out. While mediators do try to “level the playing field” and probably will not allow one party to berate the other, they are not there to make sure the final deal is fair to you. In fact, if you reach an agreement through mediation without your lawyers present, a mediator will ofi.:en give each party a list of terms and tell you each to take it to your respective lawyers for their review, further highlighting the fact that the mediator does not give you legal advice, and is not there to protect your interests.
Summary
Mediation can be an excellent method of resolution if both parties feel they have the information they need, and are able to express themselves to each other without fear or pressure from the other spouse. It may not be the method for you if you feel intimidated by your spouse, or your spouse has greater information about the family finances than you do.
Traditional Representation/Negotiation
Definition
Each party is advised by and represented by an attorney in the traditional representation/ negotiation process. The parties negotiate an agreement through their respective attorneys. The communication goes through the attorneys.
Pros
You have a professional negotiator handling the negotiations with your spouse. You have the protection of a lawyer guiding the negotiations, making sure you are aware of your rights and obligations under the law, so that if you are agreeing to give up a right, you are doing it with full knowledge of what you are giving up. Particularly if you and your spouse have some idea of what you want an agreement to look like, this can be an efficient way to get it written up, get smaller disagreements worked out and any questions answered. If you and your spouse voluntarily exchange the relevant information, particularly about finances, and have an idea of what you want a settlement to look like, this can be a less expensive and faster way to resolution.
Cons
The traditional representation/negotiation process appears in two places on the able of Divorce Processes above because, as with each process, it can be fast and easy, or it can be long and drawn out depending on several factors. First, is whether you and your spouse voluntarily exchange all relevant information. If either party withholds information, or is reluctant to provide it, it can slow down the process. And you are paying for your lawyer’s time each time that lawyer has to communicate with your spouse’s lawyer to attempt to obtain the information. Second, if one party (or both parties) takes an unreasonable position and refuses to budge, all the negotiation in the world will not make the resolution fast and easy, unless you are willing to submit to that unreasonable position. So, with all the best intentions, you can reach a dead end with negotiations that may require the litigation process to resolve. Third, and I do not say this lightly, if one of you is represented by an attorney who (a) is inexperienced, (b) sincerely believes litigation is necessary in your case, or (c) has a tendency or incentive to litigate, this process may simply be the first step on your way to litigation. If you are interested in having the protection and advice of an attorney, but also in achieving a negotiated result, it is important that you choose your lawyer wisely (which I will discuss in a later chapter) and hope that your spouse does the same.
Summary
The traditional representation/negotiation process is shown in two places on the Processes Table because it can be a very quick and easy resolution, particularly if each of you are represented by knowledgeable and experienced family lawyers and you know what you want, or it can be the first step before litigation.
Collaborative Practice/Process
Definition
Collaborative practice is a relatively new method of resolving Family Law cases, as well as other disputes, that attempts to put the focus on the future, and the parties’ wishes for how they would like their future relationship with each other and with their children to look. The hallmarks of a Collaborative practice case are that each party is represented by a lawyer trained in Collaborative practice, and you have a series of four-way meetings with both lawyers and both parties to negotiate and attempt to resolve your issues. At the beginning of your case, both parties and, in most cases, both lawyers sign a “participation agreement” that, among other things, includes the following elements:
1. No litigation. There will be no litigation while you are participating in the Collaborative process.
2. Transparency/openness. The parties will share all relevant information. Neither party will take advantage of a misunderstanding of the facts by the other party, but instead will volunteer information when necessary to remove the misunderstanding.
3. Lawyers cannot represent parties in court. Except for an uncontested divorce hearing, or other mutually-agreed court hearing, if the parties cannot resolve their differences in the Collaborative process, neither lawyer (or their law firms) can represent you in court. In other words, if you cannot resolve matters in the Collaborative process, the parties must find a new lawyer-and pay another retainer-and the lawyers lose a client.
The elements of the participation agreement are designed to give both parties and the lawyers an added incentive to reach an amicable settlement, and to avoid one of the most expensive aspects of the litigation process, the discovery process. Collaborative practice has a number of methods and approaches.
One very popular approach is called the “team approach” in which each party not only has a lawyer, but also has a “coach,” a mental health professional to assist with communication issues and parenting issues. The coaches may attend the four-way meetings, in which case they are six-way meetings, and assist in keeping the discussion on business, and in supporting a party who may have difficulty expressing his views. A coach is likely to meet with his or her client alone, and the two coaches may then meet with the parties without the lawyers present. Coach and client meetings may be on issues of parenting and communication that do not require legal advice or an attorney to be present. In this way, by having the experts in communication and in child development working with the clients on communication and parenting issues, and the lawyers focused on legal issues, the parties are spending their money in a more efficient manner.
The parties may also use neutral experts such as a financial professional to gather the parties’ financial information and give them neutral information about their finances and options. Another team member may be a “child specialist,” a mental health professional who meets with the children as well as the parties and brings the voice and needs of the children into the discussion.
Particularly if you use a Collaborative team, that team is available to the spouses even after the divorce has been entered. Divorced spouses could return to the team when disputes arise, or when changes have occurred and they wish to consider a change to the custody arrangements. In this way, the Collaborative process can also keep a lid on potential post-divorce litigation expenses and acrimony.
Pros
The Collaborative process is an attempt to make your divorce as constructive as possible. You are committing to each other that obtaining legal advice from an independent lawyer of your choosing is not simply a stepping stone to litigation, but rather is an attempt to resolve things amicably and also with full knowledge of your rights and obligations.
It is a future-focused process where all of the professionals involved are working together to help you and your spouse achieve the most satisfactory result. For those who are uncomfortable advocating for themselves in the kitchen table or mediation approaches, Collaborative practice provides the protection of having an advocate by your side, as well as independent legal advice, but without the aggressiveness and hostility of litigation.
It is a variation on mediation. Collaborative lawyers are trained in skills that are similar to mediation. The Collaborative process is an attempt to keep the control in the hands of the parties while providing them with the support and assistance of a legal expert, a mental health expert, a financial expert, etc.
Cons
This approach, like mediation, requires trust that your spouse will voluntarily provide you with all of the relevant information you need. Even though you are both signing an agreement to provide this information, an agreement, like any other contract, is only as good as the performance by each party. If your spouse refuses to provide necessary information, you may be spinning your wheels. The consequence to a party’s refusal to be open and provide necessary information, is only the termination of the Collaborative process.
If one party is not participating in good faith, you may find that you have wasted a substantial amount of time and money and have not made much progress. Particularly if you have monthly support issues where a court’s authority is limited by the date on which you file your petition, you could lose valuable time if you attempt this process and four months later you are back to where you started.
Finally, particularly with the team approach, there is a larger up-front cost than the cost of retaining one lawyer to negotiate on your behalf, or the cost of one mediator divided between both spouses. Many Collaborative lawyers say that the upfront cost is greater but the total cost is less than litigation. I believe the cost varies widely depending on the issues in dispute, the level of conflict between the couple, and the amount of cooperation each spouse gives to the process.
Summary
Collaborative practice is a modified method of mediation that depends on the good faith efforts and openness of the parties participating. Its commitment to no litigation provides an added incentive to the parties (because if they do not reach agreement, they must come up with another retainer for a new lawyer) as well as an added incentive to the lawyers to help you settle (because if we cannot help you reach a settlement, we lose a client).
It is a multidisciplinary approach that brings in the assistance of mental health professionals at the beginning of the process, and in a manner in which they are involved in the solution, rather than sitting on the sidelines with you helping you nurse your wounds from your divorce, often after the fact.
It can also be a more cost-effective way to resolve various issues, by bringing in legal, mental health, and financial experts to weigh in on the areas in which they have expertise. The real advantage to Collaborative practice is not in its cheapness, but in its effectiveness in bringing about a resolution without the trauma and stress to the parties and their children that litigation brings.
Litigation Definition
One or both parties file a lawsuit in a court. After a period of formal discovery, during which each parry may ask questions of the other and obtain information about the issues in dispute, there is a trial during which each party may testify, present evidence, and bring in third-party witnesses to testify. At the end of the trial a judge (or in some jurisdictions a jury) decides the issues in dispute.
Pros
In most cases, there is a clear end to the process, namely a trial and a decision by the court, usually in writing. During formal discovery, each party may learn about each other’s claims and relevant information that each possesses. If one party is not forthcoming with relevant information, such as financial records, they may be subpoenaed directly from the financial institution. If a party with a legal obligation to support the other (or their children) simply refuses, a court hearing can often correct that situation.
For many different reasons, some people simply will not do something voluntarily, or will not agree to what you want simply because you want it. If you are dealing with a spouse like this, that person may only do the right thing when a judge requires it of him or her.
Commencing litigation does not necessarily mean that you will have a trial on all issues. Most cases resolve by agreement before trial. In many cases, going through the process of discovery or going through a temporary support hearing process is enough to persuade one or both parties to come to an amicable agreement before incurring the full expense of a trial.
Cons
Litigation is the slowest, most hostile, most expensive way to resolve a problem. It is a process of last resort, in my opinion. For your lawyer, litigation is extremely labor intensive and detail- oriented. As a result, it is extremely expensive. In the courts where I practice, from the time you file a complaint, it may be six months to a year before you have a trial.
Your result is also not likely to be the detailed determination of every minute issue that is in dispute. The courts are so overwhelmed with domestic cases, that the judges have limited time to spend on each case. Most final orders or judgments are resolutions drawn in broad strokes. It is like using a sledgehammer, not a scalpel.
The divorce judgment may not be the end of the litigation road. Besides the possibility of an appeal, the court may retain the authority to modify parts of your judgment (such as issues of custody or support), meaning that your spouse could drag you back into court for more litigation in the future. Remember that anyone can file a complaint or a motion, however baseless it may be. Filing it does not mean that it will be granted. But it is often costly and wearing to get to the order or judgment that finds that it was baseless.
And if you are looking for the court to condemn your spouse, or state publicly that he or she is a bad person, that is unlikely to happen. For better or worse, judges today are not generally in the business of adjudicating morality. Given statistics, there is a good chance that your judge is divorced, possibly an adulterer, or someone who is paying or receiving child support or alimony, with his or her own grumblings about how the divorce went. So your judge may have his or her own personal opinions about divorce. In addition, your judge will spend at most a few days with you, and will not know you much at all before making a decision that affects the rest of your life. In short, litigation is an expensive crap shoot with a human being who does not know you making the final decision.
Summary
Litigation is a necessary last resort in certain cases, where you need information that your spouse is refusing to provide, where your spouse is entrenched in an unreasonable position, or where you need a definite end to the process. It is an extremely expensive process. Often times, however, commencing litigation does not mean going to trial. It instead starts the clock running on a resolution and focuses both parties on reaching agreement before having to incur the expense of a trial. Nothing focuses the mind on settlement like a trial date.
“Divorce Decisions: Practical Ways to Protect Yourself, Your Children and Your Wallet,” was published in August 2009 by Capital Books. It is available at your local bookstore or at Amazon.
Marjorie Just is a Principal in the firm’s Washington office. Marjorie Just’s practice as a family law attorney focuses on the negotiation, settlement and litigation of complex family law matters in Maryland and the District of Columbia. She can be reached at 240.507.1700 or mjust@offitkurman.com.