Chapter 1
The Role of Mediation and Collaborative Law in the Divorce Process

The Four Divorces.......................................................................... 15

The Emotional Divorce................................................................ 17

The Social Divorce...................................................................... 20

The Financial Divorce................................................................. 23

The Legal Divorce...................................................................... 25

Keeping It Simple: The Uncontested Divorce................................. 25

Beyond the Basics: The Contested Divorce.................................... 27

Filing the Papers......................................................................... 28

Service and Response................................................................ 28

Temporary Orders...................................................................... 29

Discovery.................................................................................... 30

Expert Opinions.......................................................................... 32

Settlement Conference............................................................... 33

Trial............................................................................................ 34

Judgment.................................................................................... 35

Postdivorce Procedures............................................................. 36

Long-Term Effects of a Contested Legal Divorce........................... 37

Mediation and Collaboration: A Different Way to Divorce................ 38

 

Getting divorced is a little like taking a long journey to a new country. The traditional way of traveling involves hiring a guide (your lawyer) to get you there. Along the way, there are stops, each of which can be expensive and risky. Ultimately, you’ll arrive at your destination, but the trip may have cost you a lot more than you expected. You may not even have all your luggage when you get there. Some of it may never show up.

When you use mediation or collaboration to settle your divorce, you and your spouse hire a different kind of guide (the mediator or the collaborative lawyers, working together). The trip may still be long and arduous. These new guides can’t “beam you up” past all the financial and emotional obstacles along the route. But they can help the two of you map out an express route that bypasses the most expensive and risky stops along the way.

 

More information on mediation and collaborative divorce. If, before going further, you want to know more about how media­tion works, give Chapter 2 a good browse. If you are interested in a little more about collabor­ative divorce, check out Chapter 3. Don’t forget to return to read the rest of this chapter.

In order to understand how a mediator or collaborative lawyer helps you avoid the pitfalls, you need to know something about the typical divorce process. In this chapter, we first take a look at the divorce process. We then explore how mediation can help you and your spouse control the timing and direction of the divorce so that you make the best of the situation you are in, rather than making things worse.

The Four Divorces

When we use the word “divorce” to describe the official end of a relationship, we are really talking about four different divorces that are taking place: the emotional divorce, the social divorce, the financial divorce, and the legal divorce. Each divorce can affect the others in ways that are either helpful or harmful.

The emotional divorce begins with the decision to separate and ends when both spouses accept the fact that the relationship is over. An awareness of where you and your spouse are in the emotional divorce is essential to a successful mediation. An out-of-control emotional divorce can interfere with the smooth progress of the other three divorces and effectively preclude the possibility of a successful mediation. Couples ending a nonmarital relationship also go through the emotional divorce.

In the social divorce, you readjust your relationships with other people. Instead of connecting to family and friends as part of a couple, you begin to interact with them as a single person. For their part, family and mutual friends will also have to adjust to your new status. They may even get involved in your divorce process by taking sides with one of you or offering advice. Sometimes this is helpful; sometimes it’s not. Either way, it can have an impact on the divorce process and on the success or failure of mediation. Again, couples ending a nonmarital relationship also go through the social divorce.

In the financial divorce, the property and debts you have accumulated during your relationship will get divided up. The income you used to support one household will have to somehow stretch to pay for two. Ideally, you and your spouse will find a way to divide things up that works for both of you without spending a ton of money on lawyers’ fees and court costs. But this will require cooperation. If you and your spouse are unable to cooperate because of what is happening in one, two, or all three of the other divorces, you will find it hard to make the financial decisions needed to complete the divorce process. Because mediation proceeds in stages that allow you to consider one issue at a time, it provides a format for separating out the financial divorce from the other three divorces so that you and your spouse can focus on financial solutions that work.

Nonmarital couples may or may not go through a financial divorce, depending on whether they acquired assets or debts jointly or shared their incomes and whether they are legally joined in one of the marriage-like relationships available in some states.

The legal divorce can be the simplest of the four divorces. Depending on the laws of the state where you live, there may be waiting periods and other formalities to be observed. Certain papers will need to be completed and filed with the court, and eventually a judge will sign your divorce judgment.

As long as you follow the legal require­ments of your state, and if the case is uncontested (meaning you have no dis­agree­ments that the court needs to resolve), getting a divorce is not all that complicated or expensive. But if you and your spouse get stuck in emotional, social, or financial conflict, the legal divorce can become a battle. And a very long, costly, and painful battle it can be.

It may not be possible for you to avoid a contested legal battle. For example, if one of you refuses to accept the end of the relationship or is so mistrustful or angry that even the most minimal level of cooperation is impossible, then you may have no choice but to settle everything in a contested court case—unless, of course, you are willing to wait and let time smooth the way. Just how long to wait is covered in Chapter 5 and in Chapter 15, together with ideas for what to do while you’re waiting.

If you and your spouse both want to settle things but are having trouble doing that on your own, mediation or colla­bor­ative divorce can give you a way to keep the legal divorce simple and uncontested. Both mediation and collaborative divorce offer tools to help you and your spouse communicate at a time when things between you may be at an all-time low. With the help of the mediator or your collaborative lawyers, you can assess where you are in each of the four divorces, identify the decisions that you need to make together, and then make those decisions in a way that takes into account what needs to happen in each of the four divorces.

Some nonmarital couples go through a process very similar to a legal divorce (see Chapter 18). Others do not go through a legal divorce. They can use the court system to resolve their disputes if they can’t agree on their own or with a mediator, but their legal action won’t be heard in family court—instead, it will be treated more like dissolving a business partnership.

The Religious or Cultural Divorce

If you and your spouse belong to a particular religious or cultural community, ending your relationship in the eyes of your community may be a fifth part of the divorce process. Mediation can be especially valuable for you, because it allows you and your spouse to include your religious or cultural values in your divorce agreement.

 

The Emotional Divorce

No matter what caused the breakdown of your relationship, and no matter whose decision it was to divorce, both you and your spouse will go through a period of emotional adjustment to the reality that the relationship is over. Getting at least partway through this period of adjustment is a prerequisite to getting through the rest of the divorce.

Psychologists who have studied divorce believe that ending a relationship means going through a grieving process similar to grieving the death of a loved one. Borrowing from Elisabeth Kubler-Ross’s studies of the grief process, psychologists have identified certain emotional stages that everyone grieving the loss of a relationship goes through:

denial and shock—“this can’t be happening; sure, our relationship has some problems, but we can work it out; my partner will come back if I give it a little time”

bargaining—“I’ll do things differently to make this stop happening”

anger—potential depression or rage

sadness and guilt, and

acceptance.

Each spouse goes through this process in a different way. Some people have a lot more trouble getting through a particular stage, such as denial or anger. Sometimes the process is more like a spiral, and a period of sadness might be followed by a return to denial, bargaining, or anger.

 

Getting through the emotional divorce is not easy. There are many good books that can help you get through this time. You might start with Crazy Time: Surviving Divorce and Building a New Life, by Abigail Trafford (Harper Collins); The Good Divorce: Keeping Your Family Together When Your Marriage Comes Apart, by Constance Ahrons, Ph.D. (Harper Collins); or Between Love and Hate: A Guide to Civilized Divorce, by Lois Gold, M.S.W. (NAL/Dutton).

 

A good counselor or support group can be very helpful. This is especially true if you are finding it hard to function in your daily life or if you are unable to carry on a civil conversation with your spouse. If you are concerned about the cost of counseling, consider how much you may save in lawyers’ fees. For tips on finding a good counselor or support group, see Chapter 8.

Your emotional timing may be very different from your spouse’s timing. Making decisions about the divorce without being aware of these differences can lead to trouble.

For example, if you are the one who initiated the separation, you probably began grieving the loss of your hopes and dreams for the relationship months or years ago. You have probably passed through the denial stage and have experi­enced at least some of the feelings that go with the later stages. You may feel ready to put the painful past behind you and get on with your new life, while your spouse is just beginning to face the reality of the divorce.

On the other hand, if your spouse has just left you, you are probably in the earliest stage of the grieving process: denial and shock, with moments of intense anger and sadness mixed in. Chances are you will need some time to sort through your feelings about the separation without the pressure of having to be reasonable or fair to someone who has just shattered your dreams.

If you and your spouse are in very different phases of the emotional divorce, allow a little time to pass before attempting to negotiate anything but the most imme­diate and temporary arrangements. Good advice from counselors and supportive consulting lawyers (or collaborative lawyers, if you choose that route) can help you make temporary arrangements that protect your rights while everyone adjusts to the separation.

Terms of Unendearment: the “Leaver” and the “Leavee”

Experts who study divorce have observed that even if both spouses have been dissatisfied in the relationship, one spouse usually starts the process of separation. This person is sometimes called the “divorce seeker,” “initiator,” or “leaver.” The other spouse is referred to as the “divorce opposer,” “left,” or “leavee.” The leavee is often taken by surprise by the leaver’s decision to separate. For the leavee, there is still hope—even if there were problems in the marriage. For the leaver, the relationship is beyond repair. The leaver tends to push for the divorce. The leavee tends to resist. Carried to extremes, this can lead to impasse or all-out war. Even in less extreme cases, a spouse’s role as leaver or leavee can have an impact on how each spouse approaches negotiating during the mediation. (See Chapter 13.)

If you start to feel stuck in the role of leaver or leavee, consider seeking the help of a trusted friend, adviser, or counselor. A good counselor can help you understand how you got to where you are, and can give you tools for managing the intense feelings—and tough choices—that accompany a divorce. (See Chapter 8.)

 

This can also be a good time to start the mediation process. The mediator can help you come up with a temporary agreement while laying the groundwork for constructive communication later on. Remember, mediation often occurs in different phases over a period of time, depending on how difficult the issues are and where the parties are in the emotional divorce.

Even after the initial stage of adjust­ment, there may be times when interactions between you and your spouse are very volatile, depending on where each of you is in the process. This can be true even if you are each making good progress in the emotional divorce. Working together in mediation or in a collaborative setting can allow you to take a “time out” when you need to because of particularly intense feelings, then pick up where you left off when things have calmed down.

The Social Divorce

You and your spouse (and children) may not be the only ones whose lives will be changed by your separation. Other people —family, friends, business colleagues, neighbors—have related to the two of you as a couple. Now they must go through their own period of adjustment. Those closest to you may experience a sense of loss and a grieving process of their own. They may take sides and blame the other person for the breakup. They may feel caught in the middle and avoid contact with both of you.

On your end, you face daily decisions about what to say about your situation, who to confide in, and who to avoid. If you are the one who moved out, you may also be establishing new routines and contacts and leaving behind old ones.

The social divorce process has a ripple effect. Your divorce is like a stone thrown into a group of leaves floating on a lake. You and your spouse (and your children) are in the center, and you experience the first and strongest splashes. Close friends and family feel the ripples next, then neigh­bors, business colleagues, and so on out into your community. Eventually, the ripples lose momentum, with no sign of them on the lake. The leaves still float, but in a new pattern created by the ripples from the stone.

The Social Divorce: Kids

If you have children, it is especially important that you find ways to handle conflicts with your spouse and avoid a legal battle. Psychologists point out that the children most badly hurt by divorce are the ones whose parents are in “high conflict.” These are the “angry associates” and “fiery foes” studied by divorce expert Constance Ahrons. These parents let their anger at one another spill over into their daily lives and relationships, instead of containing the marital conflict. Their inability to control their behavior during angry times can lead to constant court battles, with a devastating effect on the children for years to come.

Fortunately, there is a lot of help out there for you and your children. Establish contact with a good counselor who can give you advice on helping your children through the divorce and handling the conflict with your spouse. Or look for a class for divorcing parents; some classes even include a program for children. You might also need to find a counselor who can work with your kids directly.

 

Read up on postseparation parenting. For help in talking to your children about the divorce, see Speaking of Divorce: How to Talk with Your Kids and Help Them Cope, by Roberta Beyer and Kent Winchester (Free Spirit Publishing). A classic that never goes out of date is Mom’s House, Dad’s House: Making Shared Custody Work, by Isolina Ricci, Ph.D. (Simon and Schuster). You’ll find lots of helpful information, including art and journal entries by children of divorcing families, in Helping Your Kids Cope With Divorce the Sandcastles Way, by M. Gary Neuman, L.M.H.C., with Patricia Romanowski (Random House). A good book for younger children (ages four to eight) is Dinosaurs Divorce: A Guide for Changing Families, by Laurene Krasny Brown and Marc Brown (Little, Brown and Company). Older children (eight to 13) may benefit from reading My Parents Are Divorced, Too: A Book for Kids by Kids, by Melanie, Annie, and Steven Ford, as told to Jan Blackstone-Ford (Magination Press).

Above all, remember that you, and not your children, are getting a divorce from your spouse.

The Social Divorce: Family and Friends

Even though you and your spouse (and children) feel the most dramatic effects of the divorce, you can’t underestimate the impact on family and close friends. Family members especially can have strong feelings about divorce in general and about your divorce in particular. Your family is likely to be supportive and protective of you, while your spouse’s family supports and defends your spouse. Family members tend to want to blame someone for the breakup; if you are the leaver, you may even find members of your own family turning against you. Close friends may react like relatives do. You may find that close couple friends who have shared outings and activities with you and your spouse now feel awkward spending time with either one of you alone.

Friends and associates who haven’t known you as well may still be affected by your separation. They, too, may have strong opinions about marriage and divorce. Maybe they have been present during emotional encounters between you and your spouse. Perhaps you’ve confided in a coworker or a neighbor or another parent, and now they feel involved in your process.

No matter how directly or remotely people are connected to you, not only can they be affected by your divorce, but they can also influence it. They may offer advice. If you are lucky, their advice will be helpful—but even well-meaning advice can sometimes make things worse. If they take sides and blame one of you, this will only add to your troubles. If your spouse’s family decides to bankroll a costly legal case on your spouse’s behalf, you may find yourself getting divorced from the whole family, not just your spouse.

Using Mediation or Collaboration During the Social Divorce

Mediation and collaborative divorce offer you a chance to keep other people’s concerns and agendas from controlling what happens in your divorce, because you and your spouse have the final say in any agreements you reach. At the same time, you can discuss concerns about particular family members or close friends in a mediation or collaborative session, even though these kinds of issues could otherwise be considered irrelevant in a legal divorce proceeding. It is even possible to include older children or key family members or friends in some of the mediation sessions so they become part of the solution instead of part of the problem, something that virtually never happens in court.

The Financial Divorce

Separating out finances can be hard, even in the best of circumstances. You don’t have to be a professor of economics to understand that two households cost more to support than one. Many of us barely live within our means—this may very well describe you and your spouse before you split up. Now, the income that barely paid the bills of one household will, at least temporarily, be expected to cover the expenses of two. This means that you and your spouse have to figure out who pays for what, where to cut back, and how to do it fairly.

Maybe your family has been able to save carefully and build up some invest­ments. Maybe you own a house together and both of you want it. Or maybe one of you wants to sell it and the other one wants to keep it but can’t afford a buyout. Maybe you have a good pension plan at your job and your spouse has no retire­ment. Maybe your spouse’s family has helped the two of you to buy a house or pay off debts. Who gets the savings or the pension? Will the house be sold? Will you have to pay back your spouse’s parents for the money they lent you?

Sometimes, financial pressures have led to or played a part in the decision to separate. You may face a mountain of debts you don’t know how you will ever pay. Will your spouse have to pay some of them? How can you be sure that will happen?

Of course, you can always have the answers to these and other financial questions decided in court, but then you’ll be spending your limited funds on the legal process, leaving even less money to go around. You may also find that your lawyer pressures you into agreeing to a financial arrangement you are unhappy with, in order to settle the case and avoid the risk of having a judge order something even worse. In all but a relatively few cases, this is exactly what happens as the case gets closer to trial. The pressure to settle gets more and more intense. Settlement judges are prone to engage in serious arm-twisting (“Counsel, if your client doesn’t agree to sell the house, I’ll seriously consider ordering it sold at auction”) in an endless effort to conserve scarce judicial resources. Faced with these threats, the lawyers pass them on to their clients, painting an ever-bleaker picture of the likely outcome in court. Few divorcing spouses can hold firm to their desired course when that happens.

Whether you settle or have a judge decide, the outcome of a contested case may not work for you or your spouse nearly as well as something you agree on together. For instance, most financial separation arrangements have tax consequences. If you and your spouse work together, you might be able to figure out a way to save taxes for both of you by dividing your assets in a certain way that is different from what a judge is able to do. Or, if you and your spouse can’t agree on whether to sell your house, it may be possible for you to take out a loan against the house together so that one of you has the cash to buy out the other. Or you might agree to go in on a consolidation loan for the bills, so that the monthly payments will be lower. In most cases, if you work together, you and your spouse can be as creative as you want, and your agreement will be legally acceptable.

Finding a financial solution that works for you and your spouse takes cooperation. It may even depend on getting other people to cooperate, like family members or business associates. If your emotional and social divorces are going smoothly, cooperation is a lot more likely. But if you and your spouse are constantly reacting to each other in negative ways, or if family or friends have taken sides, your attempts to negotiate a workable financial settlement may run into heavy interference.

Using mediation or collaboration increases the likelihood of cooperation between you and your spouse. Both approaches give you a forum outside of the legal arena to work out the financial arrangements without ignoring what is going on socially and emotionally.

 

Information on money and divorce. No matter what method you use to get through your divorce, you can find the answers to most financial issues you are likely to face in Divorce & Money: How to Make the Best Financial Decisions During Divorce, by Violet Woodhouse with Dale Fetherling (Nolo). If you’re divorcing late in life, the special issues you face are covered in Divorce After 50: Your Guide to the Unique Legal & Financial Challenges, by Janice Green (Nolo).

The Legal Divorce

Different states have different laws and procedures to be used in a divorce. This means you will need to find out your own state’s specific requirements at some point. (Most often, this information will come from your mediator, collaborative lawyer, consulting lawyer, or law coach.) But even with these state differences, the basic process is the same in all states: One spouse begins the case by filing certain papers, then decisions you negotiate about the legal and financial issues are written up in a court order and a judge grants the divorce.

If the case is uncontested, the process doesn’t have to take very long or cost very much. You may even be able to handle the divorce yourself, using a self-help book or another resource. If the case is contested, it can take months or even years to complete, at a cost running into the thousands or tens of thousands of dollars and more.

Whether your case will be contested or uncontested depends on whether you and your spouse can come to an agreement on the legal and financial issues in your case. Because of what’s going on in the emotional and social divorces, you and your spouse may have trouble doing this on your own. A mediator or good collaborative lawyers can help you negotiate the agreement needed to make your case an uncontested one.

Keeping It Simple: The Uncontested Divorce

We’ve all heard of the nightmare divorce cases that drag on for years and bank­rupt the participants, leaving them and their children emotionally scarred and embittered. Thankfully, these cases are in the minority, even though they get a lot of attention. Most divorcing couples resolve their divorce issues with little or no courtroom wrangling. They do this by negotiating a settlement out of court on their own or with the help of lawyers, or in collaboration, or in mediation with a neutral person who facilitates the settlement.

The terms of the settlement are written down in an agreement that can be presented to the judge as part of the uncontested divorce. In this book, we refer to the written agreement as the “divorce agreement,” although there are many other designations for it, such as “marital settlement agreement” or “stipulated divorce judgment or decree.” (See Chapter 16.)

Once you and your spouse write up and sign the divorce agreement, your legal divorce will be uncontested. It typically will require these four steps:

Filing the papers. You or your spouse must submit a written request for divorce (called a petition or complaint) with the court, sometimes accom­panied by supportive docu­ments required by state or local laws.

Serving the papers. The spouse who files the papers has them legally delivered to the other spouse—this can be done cooperatively, using the mail or a mutual friend, or it can be done by formal service (having an adult deliver the papers in person to the nonfiling spouse).

Appearing in court (on paper or in person). You and/or your spouse must appear in court to assure the judge that your marriage really is over and that you have satisfied the basic requirements for a divorce. Some states allow you to avoid an in-person appearance before the judge by filing an affidavit—a sworn statement—asserting the necessary facts. Even if you are required to appear in person, this is a process that typically takes no longer than five to ten minutes.

Entering the judgment. Your divorce agreement is approved in a judgment, or decree, of divorce signed by the judge. In some states there are two judgments, a temporary or “interlocutory” judgment and a final judgment, granted after a waiting period is over.

That’s it. Sometimes, the paperwork might make it seem a little more compli­cated, but the complications are all on the surface. If you or your spouse is handy with paperwork, you can complete the divorce yourselves. If not, you can pay a reasonable fee to have the papers prepared for you. Even if you or your spouse must make an in-person court appearance, it is almost completely automatic and shouldn’t require the services of a lawyer.

If getting a legal divorce is so simple, why do some people experience bitter, expensive divorces that last months or years? Remember, the uncontested divorce can happen only if you and your spouse are able to agree on everything.

Beyond the Basics: The Contested Divorce

If you can’t agree on some or all of the things that have to be decided, or if you turn your divorce case over to your lawyer before even trying to reach an agree­ment, you jeopardize your chance of having a meaningful say about the core decisions in your case, and the legal divorce can become immensely more com­plicated, expensive, and unpleasant. Why? Partly because the legal system is set up in an adversarial, win-lose format. Partly because of how lawyers are trained and expected to operate in that adversarial system. (See “Why Do They Act That Way?” below.) Partly because even simple communications can easily get distorted by the process of going through the lawyers before they reach you, and each misunderstanding adds to the mistrust and anger between you and your spouse.

Why Do They Act That Way?

Lawyers are trained to follow certain standard procedures and rules when they represent someone. If you hire a lawyer to handle your divorce case before attempting to negotiate an agreement with your spouse, your lawyer will probably follow the procedures and rules that apply to your case. Your lawyer may even consider it malpractice not to use every possible legal maneuver in your behalf. Even if you find a lawyer who will consider avoiding unnecessary and costly legal procedures, there is no guarantee that your spouse’s lawyer will do the same. Once the case is filed, it can easily take on a life of its own. Instead of four easy-to-handle steps to an uncontested divorce, you have multiple steps, each adding to the expense and hostility typically generated in a contested case.

Unlike lawyers representing clients in a typical contested case, collaborative lawyers take specialized training in negotiating effectively in a collaborative setting, while still protecting their clients’ interests. In addition, both lawyers—and the divorcing spouses—sign an agreement committing themselves to work together and requiring the lawyers to withdraw if the case becomes contested.

 

In mediation or collaborative divorce, you bypass the worst parts of the legal process. First, both approaches are nonadversarial. Second, you speak for yourself in the negotiations, even if you have a lawyer advising you as you go. In fact, you don’t even need to be represented by a lawyer in mediation, although you may find it beneficial to hire a lawyer to advise you and to handle the uncontested divorce. Third, you deal directly with your spouse, supported by the mediator or your collaborative lawyer, cutting down on the risk of miscommunications.

What exactly do you bypass in media­tion? Remember the four steps for the uncontested divorce. Triple that (at a mini­mum) and crank up the intensity several notches, and you begin to get the picture. Below are the typical steps in a contested divorce.

Filing the Papers

This is similar to the first step of the uncontested divorce: One spouse files a petition or complaint with the court. Some states allow the spouses to file a joint peti­tion, but this is not common. Usually, the person who files pays a filing fee to the court.

The petition typically contains infor­mation such as the names of the spouses and any minor children and significant dates, such as the date of marriage, the children’s birthdates, and the date of separation.

The petition states the reason (“grounds”) for the divorce. If your state has no-fault divorce and the spouse filing the papers opts to elect a no-fault ground, the papers will say something like “irreconcilable differences” or “irremediable breakdown.” If your state has fault divorces and the spouse filing the papers opts to elect a fault ground, the petition might accuse the other spouse of mental cruelty, adultery, abandonment, or something similar. In some states, the filing spouse can allege “separation” if the parties have been living apart for the required amount of time—usually at least one year.

Service and Response

This next step starts out like the second step of the uncontested divorce: The petition is served on (received by) the nonfiling spouse. But unlike the uncontested divorce, this can come as a complete surprise to the recipient. Having a stranger hand you legal papers telling you that you are being sued for divorce can be a humiliating and enraging experience. It can undermine trust and communication between you and your spouse. In fact, it can turn a potentially uncontested divorce into a contested one just like that. If you have a choice, don’t do it this way.

The spouse who is served usually has a certain period of time to file a response or countercomplaint contesting the allegations and requests in the petition. There’s usually a filing fee for the response as well.

Temporary Orders

At the same time or after a petition is filed, either spouse can ask the judge to make temporary orders, called interim or pendente lite (pending the litigation) orders. Temporary orders typically cover things like child support, alimony (also called “maintenance” or “spousal support”), possession of assets (such as cars or the family home), and restraining orders barring a spouse from doing certain acts such as emptying bank accounts. These orders stay in effect while the divorce case is pending.

If You Litigate

The spouse asking for temporary orders files and serves papers stating the reasons for the request. Sometimes the judge grants emergency orders even before the papers are served. Once served, the other spouse files and serves papers consenting to or opposing the request. In order to convince the judge to agree with them, both sides often make extreme and inflammatory accusations in their papers, causing even more bitterness and mistrust between the spouses.

After the papers are filed, the lawyers will talk to each other about what is likely to happen in court and will try to get their clients to agree to some sort of compromise. If that’s not possible, there is a hearing where the judge makes a decision, and one of the lawyers writes it up into an order that the judge signs.

The temporary orders can be changed, or modified, later on by filing more papers and having another hearing. This process of getting or changing temporary orders can continue on for months or years until the whole case is completed.

If You Mediate or Collaborate

The fight over temporary orders is one of the important steps you can bypass in mediation or collaboration. With the help of the mediator or collaborative lawyers, you and your spouse can figure out what needs to be decided on a temporary basis, negotiate something that makes sense to you, and put your agreement in writing. Your temporary agreement might still get filed with the court, but you can do this without filling the court file with angry accusations and counteraccusations. You can also tailor the specifics of your agreement to take into account what is going on in your emotional, social, and financial divorces in a way that a judge can’t.

Discovery

Discovery is a process in which lawyers use certain legal procedures to gather evidence and information from the other spouse to use toward settlement negotiations or trial.

If You Litigate

Discovery can eat up a lot of time, cause hard feelings, and cost a lot of money. Unfortunately, it is often used to intimidate or wear down the other side, not simply to get information. If the lawyers don’t agree on what can be asked for, or if a witness refuses to cooperate, then more papers get filed with the court, there are more hearings, and the expense and unpleasantness escalate.

Because discovery consumes so much time on the part of the lawyers and the divorcing spouses, it can be one of the most expensive and embittering parts of a divorce.

 

Take Lucinda and Franco. When Lucinda realized her marriage of nine years was over, she hired a lawyer recommended by several friends and filed for divorce. Franco took the advice of his friends and family and also got a lawyer. During their marriage, Lucinda and Franco both took an active role in handling the finances.

As part of his standard procedure, Lucinda’s lawyer has served Franco’s lawyer with written questions, called inter­rogatories, about the finances and other details of the spouses’ lives. The questions must be answered in writing within 30 days. Franco and his lawyer spend many hours going through the questions, deciding which ones to answer and which ones to refuse to answer. (State laws on discovery typically allow parties to refuse to answer certain types of questions involving confi­dential communications and privacy.) When Franco and his lawyer finish, the lawyer’s secretary types the answers, Franco proof­reads and signs them, and his lawyer sends them back to Lucinda’s lawyer.

Meanwhile, Franco’s lawyer has mailed to Lucinda’s lawyer an extensive list of documents, called a subpoena duces tecum or an inspection demand, to be produced in 30 days. Lucinda spends hours going through boxes and files, then her lawyer spends hours looking at all the documents, then the lawyer’s paralegal makes copies and sends them to Franco’s lawyer, who spends hours looking at them and making notes.

After this, Franco’s lawyer schedules a deposition of Lucinda, and Lucinda’s lawyer does the same with Franco. This procedure is a lot like court testimony, only it takes place in one of the lawyers’ offices. A court reporter is there to make an official record. The witness (Lucinda or Franco) swears to tell the truth. Then the lawyers ask questions about the facts of the case. Because the lawyers don’t finish their questions by the end of the day, the depositions are carried over to additional days, until all the questions are answered.

Lucinda and Franco’s lawyers also sub­­­­­­poena other people—bank representatives, business associates, friends, family—to produce documents or to appear at a depo­sition to answer questions.

Lucinda, Franco, and some witnesses give incomplete answers or don’t produce all the documents requested, or their lawyers don’t agree on whether certain questions have to be answered; Lucinda and Franco end up paying their lawyers to get court orders requiring more information or preventing improper questions.

By the time they get to their divorce trial, Lucinda and Franco have between them run up over $50,000 in legal bills to get information that could have been exchanged informally and that may not even be important to the case. In addition, Lucinda and Franco are furious at each other for the time and money they’ve had to spend in complying with the discovery procedures, and are depressed because they realize that almost all the equity they have in their house will go to pay legal bills they ran up in the course of “discovering” what one or both of them already knew.

If You Mediate or Collaborate

In mediation or collaboration, you can eliminate the need for expensive discovery by agreeing to give each other any and all information you have about your finances and other matters that need to be decided. If you agree to exchange information that needs to be kept confidential, you can make a nondisclosure agreement between yourselves and have it filed as an uncontested “protective order” (an order requiring that certain documents or information be kept confidential and be treated by the spouses and the court in a way that protects that confidentiality).

Expert Opinions

Sometimes, spouses disagree about a particular issue, such as the value of a piece of real estate or a family-owned business, whether the children are better off with one parent or the other, or how much money one of the spouses really earns (or is capable of earning).

If You Litigate

If you litigate your divorce, the lawyers may hire expert witnesses to study the situation and prepare written reports. Sometimes both sides agree to use one expert and split the cost. Sometimes the judge will appoint an expert and order the spouses to share the cost. But more often, each side has separate experts. Naturally, experts are paid handsomely to render their opinions. And their fees go up if they must testify at a deposition or in court.

If You Mediate or Collaborate

You can save a lot of money in expert witness fees by agreeing in mediation or collaboration to get neutral professional opinions on certain issues. Experts who know that spouses have jointly hired them to give an opinion that will not end up in court often will give a preliminary report at a fee greatly reduced from what they would charge for a more complete, formal report. This may be all you need to negotiate an acceptable compromise.

Settlement Conference

As mentioned earlier, most divorce cases—even those that are hotly contested—settle before trial. The obvious aim of mediation is settlement of the issues.

If You Litigate

If your case is ready for trial and hasn’t been settled by negotiations between the lawyers, the judge will often order everyone to come to court for a mandatory settlement conference. The lawyers may be required to file settlement conference statements ahead of time. These can be quite lengthy, and in them the lawyers can take extreme positions on the issues in the case, which may further alienate the spouses and make them even less likely to settle.

At the conference, the judge usually starts by meeting with both lawyers in the judge’s office, called the chambers. Each lawyer will lay out the strong points of that lawyer’s case for the judge while poking holes in the other side’s position.

After listening to the lawyers, the judge will make suggestions for compromis­ing the case, based on the strength of each party’s legal position. The lawyers take the suggestions back to the spouses, who have been waiting around, wondering what is going on. Each lawyer tries to convince his or her client to agree to what the judge has proposed by pointing out the weaknesses in that spouse’s case. This may be the first time the spouse has heard of these weaknesses, having been convinced by the lawyer that the case was a winner. Spouses who agree to a settlement under these circumstances often feel later that their lawyers forced them into an unacceptable compromise.

If the lawyers persuade the spouses to agree, then the judge will probably come into the courtroom so the agreement can be read out loud—“put on the record”—and approved by the judge. This may be the first and only time the spouses ever see the judge. The lawyers and the judge’s clerk take notes on the agreement, and a court reporter makes a record of the agreement for later reference. One of the lawyers is given the task of writing up the agreement, and everyone leaves. The spouses may be so dazed and overwhelmed by this experience that they don’t know what they agreed to or why.

Even after the settlement is agreed to, it can take many back-and-forth drafts between the lawyers to agree on the precise wording, adding another layer of expense. Sometimes the lawyers do not agree on what the settlement was, or they think of an item or issue that was left out. This can mean filing more papers, more hearings and discussions, and more legal fees.

If You Mediate or Collaborate

When you settle your case in mediation or collaboration, the mediator or your collaborative lawyer works with you to make sure all your concerns are discussed. Even though you may have to compromise on some things, you have a chance to explain your point of view and your feelings and, hopefully, find a solution that both of you can live with.

If you mediate, the mediator prepares the divorce agreement, or a very thorough written summary of the points agreed on, for you. If you collaborate, one of the collaborative lawyers writes up the agree­ment, with input from you, your spouse, and the other lawyer. Then you all review the divorce agreement (or summary) together, and use mediation or collaboration for any necessary changes, additions, or correc­tions. This cuts down on the need for numerous drafts and redrafts going back and forth between lawyers.

Trial

Before the court can grant a divorce judgment in a contested case, the facts supporting the request for divorce and the evidence relating to any issues that haven’t been settled must be presented to the judge at a trial or hearing.

If You Litigate

Most contested cases are settled before trial. The prospect of adding to an already-enormous legal bill and the fear of losing in court are enough to convince most people to take the best deal they can get at that point. If the case doesn’t settle, there will be a trial. In almost every state, the case will be decided by a judge, not a jury.

Lawyers spend many hours preparing for a trial. They will go over documents, meet with witnesses, take copious notes, file written statements called briefs, prepare charts and summaries, do legal research, and run up very large bills.

At the trial, the spouses must take the witness stand to answer questions from their own lawyers and the lawyers for the other side. Other witnesses, including expensive experts, might testify, and the lawyers will object to questions, make arguments, and do many of the other things we’ve seen them do in courtroom dramas in movies and on TV.

The judge will listen, occasionally ask questions, and take notes. If a lawyer objects to a question asked by the other lawyer, the judge will decide whether the question has to be answered.

At the end of the trial, the judge can announce a decision right then and there or send everyone home and issue a written decision in a few days, weeks, or months. Most judges opt for the latter approach.

If You Mediate or Collaborate

If you mediate or collaborate your case, there is no trial. At most, you will make a brief—five- or ten-minute—court appearance to present the uncontested judgment. You and your spouse decide on how to handle all the legal and financial issues. The mediator or collaborative lawyer offers suggestions and keeps the negotiations going, but the professionals do not make the decisions for you; you have the final say in what happens.

Judgment

Once the judge has decided how to rule in the case, or has approved the settle­ment agreement, the judge will sign a court order spelling out the terms of the divorce. This is the judgment—or decree—of divorce.

If You Litigate

As soon as the judge decides the case, the written judgment is prepared by one of the lawyers. The lawyers send drafts of the judgment back and forth, trying to make the wording of the judgment most advantageous to their clients. If they don’t agree on the wording, they may be back in court, arguing their cause to the judge.

Eventually, the judge will sign the written judgment. At that point the divorce will be official. In some cases, if there has been a long delay since the decision was made and the spouses need their divorce date to be earlier (often because of taxes), the judgment might backdate the divorce to an earlier date; this is called a nunc pro tunc (now for then) judgment.

In many states, there are two parts to the judgment: an interlocutory or tem­porary judgment, and a final judgment that gets filed once the required waiting period ends.

Some states also allow for bifurcated, or partial, judgments so that different issues get decided at different times. For example, a bifurcated judgment on marital status can grant the divorce, ending the marriage itself, but leave the financial and child custody issues to be decided later. This may be done to allow the spouses to file as single taxpayers or to remarry. It can also affect insurance benefits, pension rights, and other things that depend on marital status and, therefore, can be another source of contention between the lawyers if one spouse wants the bifurcation and the other doesn’t. Even so, bifurcation can be a good way to put emotions to rest by obtaining closure on the marriage before taking up the more difficult issues.

If You Mediate or Collaborate

A divorce that is mediated or collaborated is uncontested; this means you and your spouse agree upon the form and timing of the judgment in advance. The process of getting it filed with the court takes very little time and effort.

Postdivorce Procedures

Even after the judgment is signed and filed, there can be more disagreements about what the judgment means.

If You Litigate

These disagreements are especially likely if the case was litigated instead of settled. For example, if the judge orders the house sold and the sales proceeds divided, imagine the later arguments: whether to list the house with an agent, whom to list it with, what price to ask, what repairs should be made and how to pay for them, what offers to accept or reject, and so on. The lawyers might take these questions back to the judge to be answered. Or one spouse might appeal to a higher court the decision to sell the house.

Either situation means more papers filed, more hearings and legal arguments, and astronomical legal fees that cut even further into your equity in the house or your savings.

Even if you don’t disagree on the correct­ness of the judgment or what it means, certain decisions, such as child custody and visitation, child support, and some­times alimony, can be changed if circumstances change. If the original case was contested, any revisited issue is likely to be contested, too. This can lead to more papers being filed, more hearings, and, of course, more legal fees.

If You Mediate or Collaborate

If you mediate or collaborate, you will have thought carefully about the decisions in your divorce agreement before agree­ing to them, so new disagreements about those decisions are unlikely. Your divorce agreement is also more likely to cover how to handle certain situations that might come up in the future. And even if something that you didn’t expect comes up, you’ll be able to ask your mediator or collaborative lawyers to help you negotiate an agreement on the new issues.

Long-Term Effects of a Contested Legal Divorce

The legal system is equipped to deal only with legal and financial issues. It often provides no help with the emotional or social divorces. When spouses can’t coordinate the emotional and social divorces with the financial and legal divorces by working out a settlement, their lives are likely to be affected for years to come.

Going through a litigated divorce may have a disastrous effect on the spouses’ ability to heal from the trauma of the divorce, even if the judge’s decision is financially and legally correct. The effect on their children’s lives can be equally destructive. Relationships with family, friends, and business associates can also be harmed. The contested legal divorce may cause conflicts and bitterness that last for years, long after the divorce itself has ended.

Mediation and Collaboration: A Different Way to Divorce

Mediation and collaborative divorce are not quick fixes for all the problems you will go through during your divorce. They won’t turn your spouse into a different person, solve your financial woes, or undo the pain you’ve suffered. But an uncontested divorce can be a way for you and your spouse to make the best of a bad situation by working together to avoid the worst pitfalls of the legal divorce.

There are five ways that mediation or collaboration can cut down on the acrimony and expense of divorce, while getting results that are at least as good as what you’d get in court. Through either of these approaches, you and your spouse can:

stabilize the situation through a temporary agreement

exchange all necessary information voluntarily

agree on legal procedures that minimize expense and streamline the process

negotiate a settlement that works for you, and

decide how to handle postdivorce decisions.

Whether you and your spouse use mediation or collaboration from the very beginning of the divorce process or only for part of it, you will save time and money. Perhaps just as important, you will more likely get through the divorce with your privacy and dignity reasonably intact.  l