Chapter 4
Your Divorce Options

Alternatives to Divorce.................................................................. 74

The Continuum of Separation................................................... 75

A Separation Checklist.............................................................. 79

Litigation......................................................................................... 81

Stage 1: Initiating the Divorce.................................................... 82

Stage 2: Resolving Immediate Issues....................................... 84

Stage 3: Discovery.................................................................... 85

Stage 4: Pretrial Preparations.................................................... 88

Stage 5: Trial and Beyond......................................................... 88

Long Term Effects of Going to Trial.......................................... 90

Arbitration....................................................................................... 90

Mediation and Collaborative Divorce............................................ 91

Interest-Based Negotiations ...................................................... 91

Mediation................................................................................... 93

Collaborative Divorce................................................................ 97

When you say “I’m getting a divorce,” it’s clear that you are planning to end your marriage. But within that simple sentence reside a series of choices—about how you want your divorce to go, how you are going to make decisions yourself and with your spouse, and how much money you intend to spend on the process. You even have the option to back off and examine the possibility of making a decision short of a divorce, like a legal separation.

Your options for resolving your divorce are on a continuum. At one end is sitting down with your spouse, having a conversation about how you are going to end your marriage, and agreeing to divide the pie that is made up of your accumulated property and debts. This is sometimes known as the kitchen-table alternative. At the other end of the spectrum is full-blown litigation, culminating in a trial.

There are many other options on the continuum, and you can choose among them or even end up using a combination. For many people, full court litigation is the first option that comes to mind, because it’s what they most often see on television and in the movies. In reality, most cases don’t go that route, and there are many other, more peaceful alternatives (that also happen to be less expensive and less emotionally fraught). These include mediation, collaborative law, and limited legal representation.

This chapter is intended to give you information about each of your options so that you can make an informed decision—in cooperation with your attorney, if you have one—about how you want to move forward.

Alternatives to Divorce

Not every couple with serious marital problems goes directly to the option of a divorce. It’s very common for people to live apart while deciding which step to take next, and there are a number of different ways to do that. This section explains the concepts of informal separation and formal legal separation, as well as postmarital agreements, which sometimes take the place of a court divorce.

The Continuum of Separation

Just as there’s a continuum of options for divorcing, within the concept of separation there are various options and levels of formality. Where you fall on this continuum depends on your circumstances. At one end is the informal separation—one spouse moves out of the marital residence for the short run, to give both of you some breathing room and a chance to assess your options. At the other end of the spectrum is a court divorce, which permanently severs your marital relationship. And in between is the legal or more formal separation, possibly involving a court order that’s quite similar to a divorce judgment.

A separation can be a concrete step toward divorce or an agreement between spouses who decide to stay together but want to separate their finances or divide marital property—a “nondivorce” divorce. We are going to examine the separation spectrum by looking at four possible scenarios. Your situation may fit neatly into one of them or gradually evolve through a variety of them.

Scenario 1: Informal Trial Separation

If you are having marital problems, either you or your spouse might move out of your family home even though you have no present intention to file for divorce. The court doesn’t need to be involved in your family decisions at this point—you do not need a court’s permission to live apart. At this stage, it is an informal, trial separation, a chance to step back from conflict and decide whether divorce is really the next step. It may be a time for individual or joint counseling. The decision can be reversed at any time.

However, when one spouse moves out, you do need to work out some issues during the separation period. Who is going to pay for what expenses? Will you change the locks, or will the spouse who moved out be able to come and go at will? Will you set up forwarding for mail and telephone calls? What will you say to friends and family about the separation? Can the spouse living elsewhere remove property from the house? While you may not be ready for a formal property division, you should make working arrangements about the use of bank accounts, credit cards, and the logistics of day-to-day life. It’s a good idea to write those down, even if you do it in a very informal way on the same pad you use to make your grocery list.

Even though you may not want to think about divorce, a separation—even an informal one—may affect your rights now and into the future. It’s not too early to consult with a divorce attorney and learn about models of separation that exist in your state and the consequences, if any, to the arrangement you and your spouse want to make.

Scenario 2: Living Apart With a Written Agreement

You and your spouse may know the separation is likely to be permanent, even though you’re not ready to file for divorce yet. In other words, divorce is a possibility or even a strong likelihood, and you do intend to continue living apart indefinitely, but for now, neither of you wants to file legal paperwork. Again, no court is involved because you’re not filing for divorce or for a legal separation. However, in this situation a written agreement can provide clarity about expectations and responsibilities.

Different states treat lengthy separations in different ways, so you should find out from an attorney whether a written separation agreement, signed by both you and your spouse, is a binding contract in your state. If you continue to live apart, will your property rights or your responsibility for debts change? How will the court characterize property or debts acquired during the separation? Is an agreement for alimony binding? There are many more questions that you should deal with. For a preview, look at Scenario 4, below, where we describe issues you might cover in a postmarital agreement; many of these are the same ones you’ll want to include in your separation agreement.

If you do end up divorcing, the separation agreement will often form the basis of your settlement or judgment. Before signing an agreement, you should carefully consider all the issues, make full financial disclosure, and be sure that both spouses have the opportunity to consult with lawyers.

Scenario 3: Formal Legal Separation With Court Action

In most states, you and your spouse can ask the court for a legal separation—a formal court order that addresses many of the same issues as a divorce judgment and sets out the ground rules for handling finances and support while the parties live apart with an expectation that the separation will be permanent. The legal separation is instead of a divorce, not in addition to it. The only states that don’t have laws providing for court-ordered legal separation are Delaware, Florida, Georgia, Maryland, Mississippi, New Jersey, Pennsylvania, and Texas. However, these states may recognize formal separation agreements, such as the postmarital agreements discussed below in “Scenario 4: Making a Postmarital Agreement.”

Depending on your state’s laws, a legal separation order may be a final determination of the financial issues in your marriage, so that even if you divorce later, you won’t have to deal with any additional property issues. The order may provide that property either party acquires during the separation is that person’s sole property, and can lift duties of mutual care and support.

In states that provide for formal court-ordered separation, the order may be converted into a judgment in a later divorce; at the very least, it will carry great weight. A judge also has the power to invalidate a separation agreement if it does not comply with state law or if there was undue pressure or fraud in its preparation. In short, this type of separation can be as complicated and expensive as a divorce. If you’re asking a court to make an order of legal separation, you’ll probably need an attorney to help you negotiate the terms of the separation.

Some people choose legal separation in order to maintain the status quo for a specific reason—for example, to keep marital status intact until a spouse becomes eligible for Medicare, to allow a military marriage to reach the ten-year or twenty-year point that entitles the nonmilitary spouse to receive certain benefits, or to meet the ten-year mark that means a former spouse is eligible for Social Security benefits (all of these issues are covered in later chapters). Others decide on legal separation for personal or religious reasons.

No matter what your legal separation does in terms of affecting your rights, you are still married, and you are not free to remarry until you get a court divorce.

Scenario 4: Making a Postmarital Agreement

Perhaps you and your spouse decide that you will resume living together after a separation, and in the interim, you’ve reached some decisions about how you want to structure your financial arrangements. Or, maybe you didn’t separate, and you want to try to save your marriage, and you have decided that you want a written agreement about how you’ll deal with financial issues if you do divorce. A written agreement that changes your rights and duties with regard to your spouse is called a postmarital agreement (or a postnuptial agreement or partition and exchange agreement). The “post” in postmarital means after a marriage has taken place, not after it ends.

 

The standards for a postmarital agreement are high. A postmarital agreement is subject to very strict rules about how it must be prepared and signed. There has to be evidence that the agreement was entered into voluntarily, that both spouses had the chance to consult an attorney, and that all financial information was disclosed in both directions.

Postmarital agreements are a relatively new phenomenon. In the past, courts refused to enforce them, on the basis that a married couple was a unit, a singular whole, and therefore could not contract with itself. Postmarital agreements are available in most states now, though many courts still are very suspicious of them. In states that do not have legal separation by way of court order, postmarital agreements may serve the same function of structuring the spouses’ financial relationship.

Postmarital agreements are based on the belief that putting to rest financial disagreements, uncertainties, and insecurities may allow a couple to continue a contentious marriage more harmoniously. The scope of a postmarital agreement can be very narrow, addressing only one or two specific issues that are bones of contention. Changing careers, receiving an inheritance, or selling a business are the type of events that may trigger a negotiation between spouses to change or clarify property ownership, entitlement to income, or finances in general. On the other hand, postmarital agreements can also have a broad scope—for example, a couple can use a postmarital agreement to plan for dividing assets, income, and debts in the event of a divorce in the future. These written contracts can also affect how property is distributed at the death of one spouse.

As is true of legal separations, some couples sign postmarital agreements—instead of divorcing—for religious reasons, for the sake of social appearances, and to get or keep benefits not available if they divorce.

 

Don’t Cave In

It’s not always wise to enter into a postmarital agreement. Sometimes one spouse files for divorce and then proposes to drop the divorce if the other spouse signs a postmarital agreement. If the spouse who didn’t file is keen to save the marriage, it may lead to unwise concessions. A few months after the ink is dry, the spouse who originally filed for divorce can go ahead and do so again—this time armed with favorable terms in a postmarital agreement with the power to influence the divorce outcome. Of course, if the second spouse can prove actual fraud in the inducement to sign the postmarital agreement, the court may refuse to enforce the terms. But you can’t rely on that, so if your spouse is threatening to end the marriage unless you sign a postmarital agreement, proceed with caution.

A Separation Checklist

If you’re considering separating from your spouse, make a plan before you make a move. Whatever your feelings about the likelihood that you will reconcile or your expectations about how you’ll deal with your finances, it’s better to be safe than sorry. Consider doing all of the following to ensure you don’t give up any of your rights during the separation period:

• Remove your name from any bank or credit card account for which you do not want to have any further responsibility. If you want to keep both spouses’ names on the accounts, then freeze joint accounts.

• Agree on how to handle mail. Remember you may need to review mail related to marital assets and debts (including credit card charges).

• Remove your name from any leases and utilities that relate to property you’re not living in, if the separation is going to be lengthy.

• Make a list of debts each spouse will pay. Both of you should sign the list when it’s complete.

• If there’s personal property you feel strongly about keeping if you do divorce later, keep it with you. Take photos or videos of household contents that are removed and left behind.

• Check health and property insurance policies to be sure that coverage is not compromised. Some insurance companies lapse coverage in case of marital separation. Be sure to read your policies carefully or ask your insurance agent about this.

• Make copies of records that you leave behind, such as tax returns, account information, and real estate documents. Make a list of addresses and account information for all financial accounts.

• List or photograph the contents of safe deposit boxes.

• Decide who is going to pay for maintenance and repairs on the cars and house, and reach an understanding about reimbursement for those costs.

• Establish agreed boundaries about privacy, and avoid unannounced appearances at the other’s residence. Discuss the possibility that one or both of you might begin dating. Avoiding surprises will help with the transition.

Separations help many people to weather difficult times in their marriage and eventually reconcile; others choose separation as an alternative to divorce. Still others find that with or without a separation, their path leads inevitably to the end of their marriage. At this point, they need to choose among their divorce options.

Litigation

The term litigation itself encompasses a broad range of possibilities. If you and your spouse each hire an attorney, and the attorneys file papers for each of you, send requests for information back and forth in a formal way, and then eventually work with you and your spouse to negotiate a settlement without going to court, that’s a litigation process—even though you may never see the inside of a courthouse. It’s also litigation if you’re in and out of court constantly, fighting over every issue.

Although both of these scenarios are litigation, they’re very different in terms of the financial and emotional cost to you. Litigation that ends in a negotiated resolution is by far the most common way that divorces are resolved—up to 95% of litigated divorce cases end in settlement without trial. But some do go to court—and if you do not mind your personal information being made public, if you want someone else to make decisions for you about your future, and if you want to pay lots of money for these privileges, then courtroom litigation is for you. Although I don’t recommend it in most cases, it is a necessary option and the best—or only—one in some circumstances.

 

Why Go to Court?

The main reason a case ends up in court is that one or both parties engage in unreasonable negotiating tactics or take unreasonable positions on the legal issues. Other reasons for litigating include:

to deal with a spouse who hides or destroys assets

to turn over the decisions to a third party

to experience a public catharsis

to have a judge interpret an ambiguous law or resolve confusing factual situations, and

to seek damages for injury caused by family violence or other wrongful acts.

 

Whether your litigation process is a formal negotiation or a battle on every issue, it will proceed along a fairly predictable path:

1. Initiation of the divorce suit

2. Resolution of matters needing immediate attention

3. Discovery of significant information and facts

4. Negotiation in an effort to settle

5. Trial, if no settlement is reached

Each of these stages is governed by laws and regulations specific to your state and, sometimes, to the court that you’re in.

Stage 1: Initiating the Divorce

You may think it doesn’t matter who files the initial papers, and in many cases, that is true. But if you or your spouse has moved to a new county or state, or if your lawyer thinks you’ll gain a strategic benefit from presenting your side of the facts first to the judge, you may want to be the first to file.

Initial Pleadings

The case begins with the filing of a pleading that may be called a petition, a complaint, or a request. (The document is called a pleading because it pleads your case.) The initial petition sets out limited facts and tells the court what you are asking for—usually a resolution of property rights, a determination of support, and the like. After filing, the spouse who filed the petition must deliver the papers to the other spouse, who is expected to respond within a limited time period. The responsive pleading is called a response, answer, or counterclaim.

 

Read the pleadings! If you receive a petition for divorce or any other legal document, check to see whether it contains any orders from a judge telling you to do something or refrain from doing something. It is very common for divorce papers to contain financial restrictions on both spouses. Read the document carefully and look for any timetables and hearing dates. If a court order is involved, make sure you comply with it, at least until you’ve had a chance to talk with an attorney.

Default Divorce

Another reason for reading papers carefully is to avoid defaulting, which means failing to respond. If you receive divorce paperwork from your spouse and you don’t respond to it within the time given, the case may proceed without you. This is called a default divorce, and if you fail to participate, your spouse may convince the judge to make orders that are not in your interest. If you are on the receiving end of a divorce petition, do not sit still and think, “This, too, shall pass.” The clock is ticking.

 

Residency Requirements and Waiting Periods

Every state has residency requirements and waiting periods. The residency requirement is the length of time you must live in the state before you are entitled to file for divorce there. Residency requirements vary from six weeks to a full year.

The waiting period is the length of time you must wait between the date you file the initial paperwork and deliver it to your spouse, and the date when you can get a final judgment of divorce. Waiting periods range from 30 days to a year or more, and even if you complete your divorce negotiations earlier, you can’t get a final judgment until the waiting period has passed. Until you have a judgment of divorce you are still married, and neither of you may remarry.

Grounds for Divorce

If you are initiating a divorce, the initial petition will set out the grounds, or basis, for your divorce request. Perhaps you have heard of the term no-fault divorce. It means that you do not have to state specific reasons for wanting a divorce, and neither person has to show that the other person did anything wrong (in the past, this was required). Under no-fault rules, the grounds for divorce are things like incompatibility and irreconcilable differences. The spouse filing for divorce just needs to say there’s no chance of reconciliation. There’s no need to present evidence of who was at fault in breaking up the marriage.

Even if the other spouse doesn’t want the divorce, there’s no way to contest it—the only things up for discussion are property division and support. In some states, you can argue that fault grounds, such as adultery, cruelty, or abandonment, should influence the division of property and the question of whether alimony is justified. If you think that fault is relevant in your case, talk to your lawyer about whether you can raise the issue in your state.

 

Learn about residency requirements and waiting periods in your state. You can find this information as well as a chart of which states use fault as a factor in dividing property or determining custody, in Nolo’s Essential Guide to Divorce, by Emily Doskow (Nolo).

Stage 2: Resolving Immediate Issues

Often, it’s necessary to resolve certain issues quickly, at least on a temporary basis. Temporary orders may cover questions like who is going to live where, who is going to pay which bills, who will care for the pets, and who should pay and receive support while the divorce case is pending. Also, if a spouse has competency issues, the judge may appoint a guardian at an early stage to serve as a surrogate decision maker (see “Surrogate Decision Making” in Chapter 3).

Often, parties can make temporary agreements themselves. But if the spouse in control of the money won’t pay voluntarily or if other issues need resolution right away, the other spouse must seek a court order. Generally, temporary orders are decided in a short hearing or, if the issue is complex, a minitrial, with both parties presenting evidence. Whether issued by the judge or agreed to by the parties, a temporary order establishes the status quo while the case is pending. You’ll have another chance later to argue the same issues, but if the issue is really important to you, take a stand at an early stage. Judges are very fond of the status quo, and you may have a hard time getting temporary orders changed later.

Automatic Restraining Orders (Temporary Injunctions)

Many states apply automatic restraining orders (also called temporary injunctions) as soon as a divorce petition is filed, to control certain aspects of the spouses’ finances and family matters while the case is pending. Typical restraining orders prevent either spouse from unilaterally:

concealing, selling, or destroying assets or incurring debts

opening mail addressed to the other spouse

canceling utilities or other services

destroying electronic or financial records

canceling credit cards

changing beneficiaries on life insurance, retirement accounts, or any other benefit that calls for a beneficiary designation

canceling or changing insurance coverage

exercising a power of attorney on behalf of the other spouse, or

interfering with the other spouse’s occupancy of the family home.

Restraining orders are designed to ensure that your marital property stays secure while you work out the terms of your divorce. If you need to do something that’s prohibited by automatic restraining orders, you and your spouse may agree to make a change—for example, you might agree to cancel a credit card so you’re sure neither of you will make any additional charges. You should put any such agreement in writing, and if you have an attorney, get advice first.

Stage 3: Discovery

The third stage of litigation is broadly referred to as the discovery phase, because each spouse tries to discover the facts needed to negotiate effectively. During discovery, you or your lawyer will use a number of legal tools to gather information about some important questions:

What positions is the other side taking?

What evidence—documents and other material—supports those positions?

Who will be called as a witness or an expert to testify to relevant facts?

What value does the other side assign to marital property?

What are the marital assets and liabilities?

What are the other spouse’s expectations about support, and what evidence supports those expectations?

What Happens During Discovery

The discovery stage is the time when theories are developed, documents are copied for the other side’s inspection, assets are evaluated, inventories are prepared, witnesses testify at depositions, expert witnesses form opinions, and all facts are gathered and reviewed. You may go to court for preliminary hearings to narrow the contested issues or resolve discovery disputes. Once both sides feel all the relevant information is available, you should begin serious negotiating about whatever is still in dispute in your divorce—issues like who owned what prior to marriage, how you’ll divide the marital estate, and how to deal with short- and long- term support needs.

The purpose of discovery is to level the playing field through information sharing. Contrary to what you see on TV, dramatic surprises at trial are rare, because discovery means each side has the opportunity to access the same information. Discovery is intended to encourage settlement and to make cases move more quickly through the system.

Tools of Discovery

The primary tools used in the discovery process are:

written requests for the production of documents

written interrogatories (questions answered in writing under oath), and

depositions (witnesses appearing in person to answer questions under oath).

Written document requests and interrogatories are the most commonly used tools, because they are less expensive than depositions. Depositions involve attorneys asking questions of a witness (usually one of the parties or a witness with important knowledge), in the presence of a court reporter and possibly a videographer. Between the lawyers’ time and the cost of the court reporter, videographer, and transcript, a deposition is an expensive proposition. Make sure there’s a good reason to incur the cost, like needing to get the other side to commit to a version of events or a position on an issue, or if there’s no other way to follow up on questions asked in written form.

If your divorce is very contentious, it’s more likely you’ll be deposed. If your spouse’s attorney wants to depose you, your lawyer will spend significant time helping you prepare.

 

Depositions aren’t scary if you’re prepared. To learn more about depositions and to get prepared if you’re going to have your deposition taken, check out The Deposition Handbook, by Albert Moore and Paul Bergman (Nolo).

The Zen of Discovery

Many a divorce client has ranted, raved, and even cried in my office because of the disruption caused by the discovery process. They’re frustrated at having to collect all the requested information, frightened by the prospect of a deposition, and angry about things the other spouse is saying. If you find yourself there, all you can do is take a deep breath and know it will end eventually. You must remain focused, be organized, pay attention to deadlines, and—for heaven’s sake—do not think it will go away if you just ignore it! Cases have been lost during discovery, simply because of a missed deadline. Cooperate with your attorney and be patient, and you’ll get through it.

 

Stage 4: Pretrial Preparations

There is no clear line between the discovery stage and the pretrial preparation stage. If you have been expecting a contentious fight, then your attorney has been preparing for trial from the time of your first office visit. At some point, though, the energy shifts and you begin preparing in earnest, meaning that the attorney puts together the information gathered in discovery and decides on the theories and themes of your case. If you’ve consulted expert witnesses on subjects like the value of your home or stock portfolio, those people will become more involved in helping your attorney prepare the case for trial. And the lawyer will line up all of your other witnesses and evidence so that everything is in good order.

Pretrial preparation also includes making efforts to settle the case. At this point, you may participate in a mediation—either voluntarily or because the court orders you to mediate. (See “Mediation,” below.) Some judges will require all of you to attend a settlement conference with the judge, who will try to help you to settle before the trial begins. Offers, counteroffers, and settlement proposals may fly back and forth between the attorneys. Some issues may be resolved while others remain in dispute, to be decided in court. Negotiations may continue until the trial begins—and sometimes you’ll reach an agreement during the trial.

Stage 5: Trial and Beyond

The final stage in a fully litigated divorce is the trial. In almost all states, divorce cases are decided by a judge without the participation of a jury. A very few states allow a jury to decide specific aspects of a divorce, but the high likelihood is that your case will be decided by a judge alone.

Every court handles trial assignments differently. Most commonly, you’ll know which judge is assigned to your trial from the very beginning of your case. But in some places, you won’t know until you walk into the courtroom on the day the trial is starting. It’s helpful to know in advance, because judges have habits, biases, and histories that are useful to know—but you’ll just have to take what comes depending on how they do things in your court.

When the trial begins, the person who filed the divorce is the first to present evidence, followed by the other party; the first party then has the opportunity to counter the other party’s evidence. Many judges place time limits on the trial, so your lawyer won’t necessarily be able to present every piece of evidence that you think is important. Your lawyer should accept input from you, but at this stage of the game you should trust your attorney to put on the best possible case and not try to change the strategy or offer too many unsolicited opinions.

All of the evidence presented, testimony given, and legal arguments urged are part of an effort to persuade the judge to rule one way or the other. In the end, the judge makes decisions that are reduced to a written order (also called a divorce judgment or divorce decree).

 

Appeals Are Not Appealing

If the judge makes a significant legal error in reaching the final opinion—meaning that the law wasn’t applied correctly—you can ask an appellate court to reverse the decision and send everyone back to try the case again. But appeals in family law cases are rare, because judges have wide discretion to determine the facts and apply the law and it’s very hard to prove that the judge made a legal error. The fact that the judge just didn’t see the evidence the same way that you do and you got a bad (or even unfair) result won’t justify an appeal. An appeal will only succeed where the judge made a serious error in legal reasoning. Appeals are extremely expensive, both because you must obtain a full transcript of your original trial, which is very costly, and because appellate lawyers are highly skilled specialists who charge accordingly.

 

Long Term Effects of Going to Trial

The idea of a trial is that truth and a fair result will prevail through an adversarial presentation of evidence and skillful argument of counsel. But we all know that is not necessarily what happens, and it’s very difficult to predict the outcome of a divorce trial. While the judge is supposed to decide the case just on the facts and the law, other factors influencing the judge can include personal experiences, personal and political beliefs, the personalities and skills of the attorneys, and the demeanor of the parties.

The bottom line is that a trial puts decision-making power into the hands of a stranger who does not have to live with the results. The experience is enormously stressful—divorce litigation can exacerbate health problems, use up vast sums of money, distract you at work, create family tensions that persist for years, and generally create havoc in your life. The effects of a litigated divorce can ripple through the family tree for generations to come. If you can, avoid it. If you can’t, make every effort to settle before trial and mitigate the damage. And if it goes all the way to trial, accept the outcome, whatever it is, and move on.

Arbitration

Arbitration is similar to litigation in that an arbitrator functions like a judge, making decisions based on evidence presented by the parties. The difference is that the arbitrator is hired (and paid) by the parties instead of being assigned by the court. Often, retired judges and experienced lawyers serve as arbitrators in divorce cases.

The arbitration process is quite similar to litigation: you’ll engage in discovery, pretrial preparation, and settlement negotiations before the actual arbitration begins. Arbitration may be formal, much like a courtroom where the rules of procedure and evidence apply, or it may be less formal—the parties and the arbitrator can decide together. But either way, the process is adversarial in nature.

 

If you’re considering arbitration, check to be sure it’s available in your state. Arbitration is not commonly used in divorce cases, and in fact, some states don’t allow arbitration in family law matters.

One advantage to arbitration is that you can schedule an arbitration hearing much more quickly than you could a court trial, and you have more control over the scheduling. You can choose whether your arbitration is binding—meaning that the arbitrator’s decision is final and there’s no right to appeal the decision or go to a different court—or non-binding, allowing a trial if one party doesn’t like the result. Arbitration can be even more expensive than a trial because you are paying for the decision maker’s time in addition to the attorney time and costs.

If trials and arbitration don’t sound appealing to you and you believe that despite your differences there is a possibility that with some skilled guidance you and your spouse might reach an agreement without litigation, you have other options.

Mediation and Collaborative Divorce

An increase in the number of divorce filings in the last few decades has clogged court dockets, and there’s also an increasing awareness of the negative consequences of highly contested divorces. As a result, professionals in the field have worked to develop other options for resolving divorces. Mediation and collaborative law are two different approaches to negotiating divorce settlements—both far less adversarial than litigation.

Interest-Based Negotiations

The term interest-based negotiations is used in both mediation and collaborative law. Interest-based negotiation is very different from the style used in an adversarial context, which is known as positional bargaining. Before diving into the details of mediation and collaboration, let’s take a look at what it means to negotiate from interests rather than positions.

In any negotiation, your fears, desires, goals, and values drive your interests—the outcomes that you want. Your interests can, in turn, steer your negotiating positions—what you tell others you want. For example, you might want to stay in your home after the divorce. Thinking there’s only one way for that to happen, you might take a strong position that your spouse should accept a certain amount of money as a buyout. That’s positional negotiating. To negotiate based on your interests, you would simply state your interest in staying in the house while remaining open to considering a variety of ways you could make that happen.

Positional negotiating involves ultimatums, roadblocks, and barriers that can limit creative problem solving. In contrast, interests are starting points from which you and your spouse identify and try to resolve your differences in ways that meet as many interests as possible. Green-light thinking, brainstorming, suspending judgment, and refraining from negative criticism are all hallmarks of interest-based negotiations.

Interest-based negotiation allows for the exploration of options that otherwise might never see the light of day. Also, it encourages you to hear your spouse’s perspective, because you aren’t worried that listening means you’re going to have to agree with the position your spouse is taking—it just means you’re taking in what your spouse’s interests are. Understanding what drives your spouse’s thinking can open the door for a meeting of the minds.

After interests are identified in the early stages of mediation or the collaborative process, they become the focus of negotiations and settlement proposals. This approach keeps both spouses tuned into what is really important, and avoids the trap of each spouse automatically reacting negatively to positions voiced by the other.

You will not get everything you want in any divorce process. But in a successful mediation or collaborative divorce that is focused on interest-based negotiations, you will come away with a well-forged settlement that meets your major interests, concerns, and needs.

You’re in Charge

One of the advantages of mediation and collaborative divorce is that you and your spouse design the solution that works for you; you are not limited to a settlement structure that is within the boundaries of what a judge could do. Judges do have limits on what facts they can consider and what they can order parties to do. For example:

Judges do not have the authority to order child support for adult children who aren’t disabled; if you design your own solution you can agree to continue supporting an adult child who’s not yet self-supporting.

Judges do not have the authority to order people to execute wills or trusts that leave certain assets intact for the couple’s adult children to inherit, but in many states you can make an agreement to do so.

In some states, judges can only order a spouse to pay alimony under certain circumstances defined by state law. But you can agree to spousal support regardless of circumstances.

Judges cannot force parties to delay the divorce until one party becomes eligible for Social Security or Medicare, but you can agree to do so.

 

Mediation

Mediation is a settlement tool that spouses can use together, rather than a decision-making process that they must turn over to someone else, like litigation and arbitration. In mediation, both spouses meet with a neutral third person, the mediator, who helps them try to reach a compromise. In some courts, you’re required to go to mediation before your case can go to trial; in others, you must attend a mandatory settlement conference with a judge that is similar to mediation. If mediation is required, then, depending on the rules of your local court, you may have a choice among hiring a private mediator, using a court-appointed mediator, or using the mediation services of a nonprofit dispute resolution center.

What Mediation Looks Like

The mediator, who has special training in negotiation and communica­tion, is selected by agreement of the parties or by a judge. The mediator’s own style will determine how things proceed, but, in general, everyone involved in the mediation will meet together at the outset. The mediator will go over the process you can expect and make certain agreements that will help things run more smoothly—things like refraining from interrupting, and making sure electronic devices are turned off and everyone is fully present. The mediator will ask each of you to outline the situation as you see it, to learn something about each spouse’s interests and ideas and to get a sense of the relationship between you and your spouse.

After that, you may stay in the same room while the mediator works with both of you together, or you may move to separate rooms and speak with the mediator in turn about your interests and ideas for settlement. The mediator will shuttle information and possible solutions back and forth until an agreement is reached or until the mediator thinks it makes sense to get everyone in the same room together again.

Whether you work together or separately depends on what the mediator thinks will be most productive. As long as it’s appropriate in the context of the parties’ relationship, most mediators prefer to meet together, as it allows for a greater possibility of real understanding. One of the most important benefits of mediation is that it can help spouses to understand each other’s positions so that they compromise because of that understanding, not just to get things over with. If you hope to have a positive relationship with your exspouse in the future, mediation may help you achieve that.

 

Try not to mediate too early. Most people want to resolve their divorces quickly and economically. But gathering information about assets and other facts is important groundwork that should be completed before serious mediation begins. Do not succumb to pressure to mediate before you have this information. The more informed and prepared the participants are, the more successful the mediation.

Mediators also differ on how often to meet and for how long. One option is to meet for a single mediation session. This assumes that both parties have all the information they need and are prepared to explore settlement. Another style is to break up the negotiations into multiple sessions. The first session may be primarily devoted to information gathering, and you’ll be sent away with instructions to think about certain scenarios and to bring back additional information. This is the most common way of conducting divorce mediation, because it’s rare for the spouses to have all the information they’ll need when they come to the first session. It also limits face-to-face negotiations, which can be emotionally difficult, to shorter periods of time.

Every once in a while, you’ll come across a mediator who wants to engage in marathon sessions well into the evening hours. I believe this is a recipe for fatigue and bad decision making and that agreements signed when the participants are exhausted are suspect. If you are too tired to think straight, tell the mediator or your lawyer and refuse to go on. And while we’re on the subject, eat a healthy breakfast on the morning of mediation, and try to resist the candy and sugar-loaded food that often appears on mediation tables. A sugar high is the last thing you need when you’re trying to make wise decisions for your future.

Discussions with the mediator are usually confidential. In fact, confidentiality laws often protect everything that happens in mediation. This encourages free and open negotiations because you don’t have to worry that things you say and proposals you make will come back to haunt you if you’re unable to settle and there’s a trial later.

The Role of Lawyers in Mediation

Sometimes lawyers attend mediation with their clients, and sometimes they don’t. Mediators may prefer to meet without lawyers present, in order to focus on communication and emotional issues before moving on to facts and figures. If you have a lawyer, then even if your lawyer doesn’t come to mediation you’ll consult beforehand to discuss settlement ideas and get prepared. Most mediators allow parties to confer with attorneys by phone during mediation, and you’re always free to stop a mediation session if you feel you need advice from your attorney before going further.

There are times when it’s important to have your lawyer present in mediation, especially if you and your spouse have settled into “controlling” and “compliant” roles in your marriage. A spouse who is less assertive and who has not participated in decision making during the marriage may find mediation unsettling and overwhelming if not properly prepared and effectively represented, and may revert to acquiescing to the other’s demands.

Even when attorneys participate in the mediation, it can be difficult to guide a less-assertive spouse through the pressures of mediation. It is common to revert to a victim role and expect the attorney to make decisions. If this describes you, try to bring your best and strongest self to the mediation and stand up for what you think is fair. Your lawyer will help and support you, but one of the purposes of mediation is to ensure that parties make their own decisions rather than letting others make them—so take the opportunity to practice doing just that.

 

Mediating If You’re Representing Yourself

Some couples use mediation to resolve their divorce without hiring lawyers to represent them at all. In this situation, you both hire a mediator—usually an attorney—to help you negotiate a resolution and prepare a settlement agreement. The attorney-mediator can give you information about the law, but doesn’t represent either of you and isn’t allowed to give legal advice to either of you. So, if you don’t have a lawyer representing you and your state allows limited legal representation, consider hiring one just for the purposes of coaching you through the mediation and looking over the settlement agreement that the mediator prepares. At the very least, you should absolutely have a lawyer review the settlement agreement before you sign it.

 

Collaborative Divorce

Even when cases are litigated, the vast majority of family law cases settle, so why not begin with a plan for a more low-key, less stressful, and nonadversarial process that provides each spouse with an advocate while preserving some level of civility between the participants? This is the theory behind the collaborative law model—the new kid on the block when it comes to resolving divorces. Collaborative law has only been around since the 1990s, but it has become steadily more popular. It blends the benefits of having an advocate with the nonadversarial approach of mediation, and it’s a great option for many people.

A collaborative divorce occurs in a nonadversarial environment where each spouse has an attorney, and together with the attorneys, the spouses negotiate their own divorce decisions in a series of four-way meetings. If the process fails, the collaborative attorneys must withdraw and the parties must hire litigation lawyers.

The Role of Lawyers in Collaborative Divorce

The most unique characteristic of collaborative divorce is apparent at the outset of the case, when both spouses and their lawyers sign an agreement saying that if the process breaks down and one spouse decides to engage in adversarial litigation, then both collaborative attorneys must withdraw from the case and both spouses must hire new counsel to represent them in litigation. In addition, both spouses and their attorneys agree to share information freely and to cooperate in the hiring of experts to appraise property or evaluate settlement ideas.

What is behind this rather restrictive-seeming structure? The goal of collaborative practice is for attorneys and parties to work together in a nonadversarial style. Instead of trying to give as little information as possible, the collaborative agreement requires the clients and lawyers to share all relevant information so that everyone has equal knowledge about assets, debts, and property. Instead of considering only their own client’s advantage, the attorneys evaluate the interests of both spouses. Instead of negotiating outside the presence of the clients, they jointly facilitate their clients’ abilities to solve problems themselves.

 

Hiring a Collaborative Attorney: Experience Counts

Collaborative law skills are different in many ways from litigation skills, and collaborative practice can be a real change of gears for a lawyer. Generally, attorneys are taught to debate, argue, challenge, attack, ask tough questions, and trap witnesses. These skills are what define litigation attorneys (and can make them unpleasant dinner guests). Collaborative training involves a very different set of skills, skills that need training to develop. In collaborative training, attorneys learn to support and encourage nonpositional, interest-based negotiations. Attorneys are encouraged to detach from their usual tendency to exert control over the outcome, instead urging clients to be creative in their thinking about how both spouses can come out of the divorce with their goals met. In addition, collaborative attorneys are trained to understand interpersonal dynamics and to support communication based not solely on financial negotiations, but also on emotional aspects of the process.

Some collaborative attorneys are in the field because collaborative practice comes naturally to them, but many lawyers must be retrained to work in that way. If you’re hiring a collaborative attorney, ask how long the lawyer has been practicing collaborative law and find out a bit about the lawyer’s training. Collaborative practice is relatively new, so you’re not going to find lawyers who’ve been doing it for decades. Just make sure your lawyer has some training and a commitment to continuing to develop a collaborative practice and isn’t doing this one collaborative case as a sideline. There’s more in “Finding a Collaborative Lawyer,” below.

 

The goal is to create a safe environment where the best solutions will surface. One spouse cannot comfortably sit across the table from the other spouse’s attorney and negotiate if the client anticipates being cross-examined by that same attorney in the courtroom some day. Being free of the worry that litigation is looming can be a great support for shared problem solving.

All lawyer-client communications are still confidential under the attorney-client privilege. Although your attorney works cooperatively and informally with your spouse’s attorney, each lawyer still has a duty to advocate on the client’s behalf, and to maintain client confidentiality, and can share with the other lawyer only information that the client has authorized.

What Collaborative Divorce Looks Like

Other than the initial divorce pleadings and a final divorce order, a collaborative divorce means you agree not to file papers or schedule hearings at the courthouse. This commitment keeps you at the negotiating table. It is not necessary that you agree on any issue at the outset other than to try collaboration. The collaborative process is significantly different from every other resolution method we’ve looked at so far, including adversarial litigation, arbitration, and mediation. Here are some of the factors that make it unique.

The Participation Agreement. The collaborative method begins with a participation agreement that both spouses and both attorneys must sign. This written agreement sets out the rules of the road; these may differ somewhat from state to state and attorney to attorney, but they usually include many of the same provisions, such as:

Any pending litigation is suspended and no new litigation will be filed unless the parties agree to file divorce papers by consent.

The parties commit to a transparent process and the use of interest-based negotiations.

The parties agree to disclose all relevant information voluntarily without discovery proceedings.

Things you say and documents you exchange during the collaborative process are confidential unless the other side would have a right to get the information in discovery if you weren’t collaborating.

The spouses agree to share the cost of hiring neutral experts.

There are procedures for terminating the collaborative process, including the requirement that spouses must hire new attorneys if they don’t settle through collaboration.

Joint Sessions (Four-Way Meetings). Collaborative negotiations occur in a series of “four-ways” or joint sessions—meetings that you, your spouse, and both attorneys attend. Other neutral professionals may also attend the meetings—for example, an accountant you chose together might come to discuss various settlement scenarios from a tax perspective, or a real estate appraiser might attend if you’re considering having one spouse buy out the other’s interest in the family home. Detailed agendas and minutes provide the structure for these meetings; the minutes then provide a written record of any agreements reached, the facts relied upon in reaching those agreements, and lists of tasks for everyone to accomplish between meetings.

Information Sharing. After the participation agreement is signed and the spouses identify and exchange their lists of interests during a joint session, the next phase of the collaborative process is similar to the discovery stage in litigation, when information and documents are exchanged and examined. Full disclosure is mandatory, and any failure to make all requested records and evidence available may stop the collaborative process and spin it into litigation. All financial transactions are available for inspection. Investments gone belly-up, affairs enjoyed, and secret spending will all see the light of day. The process requires truthfulness and openness: It is transparent.

You’ll work through the different elements of your case one by one. Your lawyers may arrange for financial experts, mental health experts, appraisers, and business or estate planning experts to provide additional information that may enlighten the parties and move the process toward resolution. See “The Team Model,” below.

Generating Options and Reaching Agreement. During the collaborative meetings, you and your spouse—the people most familiar with your lives—generate options that a judge or attorney might not think of. As you brainstorm about options, your attorneys will advise you about the range of possible courthouse outcomes and the law that’s relevant to your case. In other words, interest-based negotiations do not occur in a legal vacuum—you’ll have all the information you need to assess the case and your options. The best settlements meet many of the interests identified by both spouses.

The Team Model

An interdisciplinary team approach—in which professionals work together to help resolve a collaborative divorce—is gaining popularity in collaborative circles. Communications experts (also called divorce coaches) who are mental health professionals trained in the collaborative process, may participate in joint meetings or meet with clients outside of the four-way meetings. They help the participants communicate effectively and avoid high conflict. One goal of collaborative law is to help participants develop better communication and problem-solving skills with each other and benefit from them long after the divorce is final. Communication coaches can help with this.

The collaborative team may also include financial professionals who analyze living expenses, calculate tax consequences, and evaluate the long-term impact of different settlement options. Instead of being immobilized by the vague fear that you will not have enough money to meet your post-divorce living expenses, you’ll get accurate budget forecasts and learn the effects of various property division scenarios.

You may also ask for the assistance of appraisers, accounting professionals, and estate planners periodically throughout the process to answer specific “what if” types of questions regarding tax, valuation, and estate planning issues. Specialized attorneys may be brought in so their expertise can be used in the negotiating and drafting of transfer documents needed to carry out agreements. None of these neutral advisors are hired without the informed consent of both parties. Like the representing attorneys, they are prohibited from participating in any subsequent litigation unless the participants and adviser agree.

 

Upsides of Collaborative Divorce

After hearing about all the professionals who could be involved in a collaborative divorce you may find this surprising, but the cost of collaborative divorce is usually significantly less than a full-blown trial. This is because there are no dueling experts, time is not wasted on unnecessary pretrial hearings, and everyone focuses on bridging the gaps meaningfully rather than splitting the difference. There is more privacy in a collaborative divorce, too, because less personal information appears in public records. Many cases are worked out in two to three meetings, while a smaller percentage of cases take months to resolve. Whatever happens, it is likely that the collaborative case will move faster than litigation; the timeline is determined by the participants, not by a judge’s docket. Participants’ expectations regarding time are discussed at the outset rather than hidden in aggressive paperwork and hearings or passive-aggressive foot-dragging.

One benefit of a collaborative process is difficult to quantify in dollars: the chance to preserve a civil relationship with your ex-spouse. That can not only improve your quality of life in the present and the future (imagine dancing with your ex at your child’s wedding), but can also prevent costly postdivorce trips to the courthouse.

Another advantage of using a collaborative divorce process is that it is a better fit for our aging brains. Research shows that as we age our capacities to deal with divided attention, novel tasks, recall of new information, and spontaneous verbal fluency are diminished. The predictable structure of collaboration—agendas, minutes, ability to schedule meetings for our best times of the day, time to reflect and react to new information and new formats of information like spreadsheets—is more age-friendly than the rigors, unpredictability, and quick decision-making that are all required in the courtroom.

Downsides of Collaborative Divorce

If the collaborative process breaks down, you and your spouse will both be facing the cost and time delay involved in hiring new lawyers to pursue litigation. This is a mixed factor—it can sometimes be an upside because it provides an incentive to hang in there during tough negotiation sessions. But the downside is the possibility of a weaker party being bullied into a settlement that isn’t fair or satisfactory, out of fear about the costs of abandoning the process—in other words, the incentive can be too strong. This downside means that collaborative divorce isn’t for everyone—especially if you don’t think you can stand your ground or walk away from the process if necessary.

If either spouse is dealing with serious substance abuse or mental illness, or if there’s a history of abuse, collaborative divorce may not be appropriate.

Deciding Whether to Use Collaborative Divorce

If you are afraid of sitting across from your spouse because of physical violence, or if you k