Divorce Doesn't Have to Be a Legal Battle

Written by Jay Mota, CFP?, CDFA?, WMCP?, ChFC?

Many assume that as soon as divorce becomes a reality, they must immediately hire an attorney to file with the courts. Certain situations, such as protection orders or immediate custody issues, may require this. Safety is paramount! If safety for you or your children is a concern, seek help immediately through legal channels. Outside of these concerns and other unique situations, reviewing the possible methods to separate and divorce is worth the time.

Before I upset my legal partners, I should say that although an attorney may not be the first person you turn to, a study performed by (1)CustodyXChange showed that 86% of cases where both parties were represented by an attorney settled their divorce as opposed to 71% when neither party was represented by an attorney and fewer, 63% resulted in settlement when just one attorney was involved (www.custodyxchange.com/topics/research/divorce-custody-statistics-2021.php ). An attorney by your side to provide you with legal advice and counsel is wise to make sure nothing gets overlooked. Once divorced, many terms of your divorce cannot be renegotiated. This statement is especially true when you've settled on the marital assets.

The question I ask those who approach me about a divorce is, how big is the fight or how big of a battle do you believe your spouse will create? I have worked with many couples. For some, the only way to get things done is through the legal process of filing for a divorce right away. Others, however, and especially when children are not involved, may decide that they want to move on and be amicable with one another. The biggest issue for those with no children or adult children is figuring out a fair and equitable way to split the marital assets. I am not assuming here that just because children are in the picture, a couple cannot be amicable; it is just that usually, in cases where children are involved, emotions tend to run higher, and more decisions must be made.

When deciding to divorce, there are legal and Alternative Dispute Resolution (ADR) methods you could use. Sometimes, both are involved. It is possible to create the terms of your divorce without involving the courts until finalizing your divorce. This means you get to divorce the way you and your soon-to-be ex-spouse want to. The truth is that most cases end in a settlement anyway. It is just a matter of how much time and effort is put in to get there.

Let's look at the different processes.

Hiring an attorney to file for divorce, the attorney will file your complaint (divorce petition) with the court. Your spouse is then notified by service of your complaint. Both parties are then required to file documents such as financial affidavits, tax returns, income statements, and all relevant documents pertaining to your marriage and divorce. This process is where things can become expensive and time-consuming. It is my belief that almost all the time, all the information will ultimately be obtained. It is just a matter of how much effort is needed to get the information, including interrogatories, a discovery process, holding depositions, hiring experts, issuing subpoenas, and court appearances. What puzzles me is how some spouses make the process expensive by holding out. Ultimately, they reduce the amount of money they are left with after the divorce. Despite the fight during the process, even in these cases, the divorce usually ends in a settlement. Thus, a contested divorce could result in the most expensive option when going through a divorce for both parties.

Hiring an attorney to help you get to a settlement by understanding your options and proposing a settlement agreement to your soon-to-be ex-spouse. This method may not require filing a petition, but this would usually need some form of mediation or negotiation between your attorney and soon-to-be ex-spouse or their attorney. It can get tricky with this method. There could be at least four people involved in the process, and if you hire a mediator, five: you, your soon-to-be ex, two attorneys, and the mediator. A mediator is trained to be unbiased and neutral; this doesn't mean an attorney will be. Perhaps for good reason, and that's why you have legal representation. But sometimes, it is not and could thrust your divorce into a contested battle, turning the matter back into a litigious fight if the mediation/negotiations break down.

Hiring a mediator first. The most important consideration of this method is that both parties must agree to be willing to work with a mediator to settle the dissolution of the marriage. There is a considerable amount of trust involved in this process. Without filing for divorce through the court, neither party is legally obligated to disclose all necessary information and documents to create an equitable division of assets. There is, however, a moral obligation, which sometimes is just not enough. Assuming both parties realize that a fight means more costs and time involved, working with a mediator can result in creating a divorce you can both live with. However, it is important to note that having a good review attorney to review the agreements made before you sign the agreement is a good decision to make so that nothing is overlooked. Beware because if mediation fails, you could be back to square one, which adds more time and money to the process.

Aside from safety, the two most important aspects of divorce are the children and money. When children are not involved or are adults, money tends to be the biggest concern when it comes to a divorce. You must have a qualified financial professional to work with so you understand not only the assets in the marriage but how to value these assets, considering all things. Such as taxes, liquidity, suitability, and how they will fit into your life post-divorce must be analyzed. Not all assets are created equally, and not all assets may be part of the marriage just because one person owns them. Unfortunately, I have seen some big mistakes in settlement agreements and how marital assets will be distributed. Even the wording in the agreement could be costly. Again, I have nothing against my attorney or mediation partners, but when considering the marital assets for division, there are no second chances except for a few severe instances. I recently posted on social media that I love the game of golf, but I am average at best. If my life depended on golf, I'd hire a pro to play for me. The point is no matter what decision you make for your divorce, make sure to hire a financial professional to guide you and help you understand the impacts the divorce will have. A Certified Divorce Financial Analyst (CDFA) is trained to perform specific financial analysis in divorce. Divorce costs more than the amount you pay your professionals if a financial mistake is made—some of the mistakes I have seen resulted in hundreds of thousands of dollars being lost.

But wait, there is more. Another way to divorce your spouse is through the Collaborative process. This Alternative Dispute Resolution (ADR) process is like mediation, where you and your soon-to-be ex-spouse get to create your version of divorce. However, it involves a team of trained collaborative divorce professionals. The team will usually consist of 2 attorneys, one for each party, a mediator or mental health professional, a financial neutral, and other specialty experts if needed. In this process, both parties must agree to the process before it gets started. The professionals are all trained to facilitate the process. The neutrals in the process are just that, there for both parties as a resource. The attorneys, each representing one party, are there to help provide legal guidance. Again, if this process fails, more time and money will be lost.

Ultimately, divorce will cost money. The question of how much money depends on how well both parties can work together. It doesn't mean both parties have to agree to the divorce, but if one person wants a divorce, it is inevitable. That is, unless the couple decides to reconcile. The key to saving money is to realize it can be the hard way or the easy way. From experience, the hard way does not yield more happiness. In any negotiation, both parties need to feel like they gave something. The sooner both people involved can start to rebuild their lives and find happiness, the better the quality of life there is to live, especially if you save money in the process. It is healthier for you and the children when children are involved.

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?"Statistics: Hire a Divorce Attorney for the Best Custody Outcome." Statistics: Hire a Divorce Attorney for the Best Custody, www.custodyxchange.com/topics/research/divorce-custody-statistics-2021.php . Accessed 23 Sept. 2023.

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