How to Choose the Best Divorce Process for You

You’re facing divorce. You want to keep it as amicable as possible. You’ve heard about mediation. You’d rather do that than go to court – mostly because you know going to court is ugly and expensive. But you’re not 100% sure how mediation works. You also have no idea that there are any other ways to go through a divorce.

What do you do?

The truth is that one of the most important choices divorcing people have to make right from the beginning of their divorce is HOW they’re going to do it. In other words, WHICH DIVORCE PROCESS will they use? Answering that question properly sets the stage for the way the rest of their divorce will go.

Understanding How The Divorce Process Works?

The best way to understand what a “divorce process” is, and how the divorce process works, is to start by taking a look at what all the different “divorce processes” are today.

In the past, the only divorce process that existed was litigation. If you wanted to get divorced you had to take your case to court. Period.

Today, there are at least five different divorce processes you can use to get divorced. (That doesn’t include hybrids, or mixes of two or more of these processes!) There are also two ways to get divorced that aren’t truly “divorce processes” but are worth mentioning because everyone thinks they are divorce processes.

Here is a quick summary of what your?divorce process?choices are (and are not!).

Litigation

Divorce litigation?is the traditional way of getting divorced. In divorce litigation, you and your spouse go through the court system to resolve all of your issues. As you’re doing that, you either settle your divorce case (usually with the help of your lawyers) OR, if you can’t settle, a judge decides your divorce issues for you.

Mediation

Mediation is a divorce process in which a trained, independent, neutral mediator helps you resolve your divorce issues outside of court. A mediator is NOT a judge. S/he has no power to force you or your spouse to do anything. The mediator’s only job is to help you and your spouse reach an agreement yourself. After you’ve done that, you must get your agreement written up and then signed by a judge.

Collaborative Divorce

Collaborative Divorce?is a process in which a divorcing couple, their lawyers, and other divorce professionals, work together to resolve all of the couple’s divorce issues outside of court. Like mediation, Collaborative Divorce is a voluntary alternative to fighting in court. But unlike mediation EVERYONE involved in the divorce (the divorcing couple AND the divorce professionals) signs an agreement saying that if the couple chooses to go to court instead of settling then all of the professionals will withdraw from the case and the couple has to start all over with new professionals. That agreement keeps people from walking away when the negotiating gets hard. But it also can make a divorce expensive if a couple throws in the towel and has to start again.

Direct Negotiation/Co-Operative Divorce

Direct negotiation, or co-operative divorce,?has many names and can take many forms. In its simplest form in a “co-operative divorce,” a husband and wife sit down and talk. They negotiate directly and settle their issues?themselves. They then either get a lawyer to draft their agreements into formal court documents, or they get their documents done online. If a couple can’t negotiate themselves, they may get lawyers to do it for them. (Which essentially means they are using litigation to resolve their divorce, although this is – theoretically – litigation “light.”)

Arbitration

Divorce arbitration?is an informal hearing process that is very similar to litigation. The main differences are that arbitrations are handled outside of court by an arbitrator, instead of a judge. Arbitration is different from mediation in that the arbitrator is NOT trying to help the couple reach an agreement about what they will do in their divorce. Like a judge, the arbitrator decides the issues for the couple.

Online Divorce

Lots of people think that they can go online and get a divorce. They can’t. The only person who can divorce you is a judge. In most states that means that someone (you, your spouse, and/or the lawyers) either has to go to court (whether that’s Zoom court or in person) OR someone has to submit all of the properly completed and agreed upon paperwork to a judge, who reviews and signs it.

What “online divorce” usually refers to is online document production. That means that instead of paying a lawyer to draw up your court documents, you go online, pay the online document production service, answer some questions, and your documents are produced for you.

Having a computer program produce your divorce documents is almost always cheaper than having a lawyer draft them. But you get what you pay for. Lawyer-drafted documents are more accurate, complete, and tailored to your specific situation than online documents.

DIY Divorce

DIY (Do It Yourself) divorce, like online divorce, is not a specific divorce process. It simply means that you are going through your divorce without a lawyer.

You can do a DIY divorce using most of the divorce processes mentioned above. You can mediate, litigate and negotiate your divorce without a lawyer. (Not to say that that’s a good idea! But you can do it.)

Obviously, doing your divorce yourself is cheaper than using a lawyer. But, unless you have a very simple case (i.e. no money, no children, no property and a short marriage), doing your own divorce can cause you a boatload of problems later.

?Choosing the Right Divorce Process

The best divorce process for you is generally the one that can get you through your divorce with the least amount of time, energy, expense and destruction. That having been said, figuring out which? divorce process will do that for you is not always easy.

Here are some QUESTIONS TO ASK YOURSELF to help you figure out which divorce process you should use:

1. Will your spouse AGREE to use whatever process you want to use?

Every divorce process EXCEPT litigation is voluntary. So if you and your spouse can’t agree on a divorce process, your ONLY choice is litigation.

2. Was there physical or emotional abuse in your marriage?

If so, trying to mediate, or get divorced without a lawyer can be dangerous.

3. Do you have a long term marriage or a complicated financial situation?

If so, you definitely need a lawyer, but might benefit a lot from Collaborative Divorce, or mediation with an experienced mediator.

4. Do you have special needs children? Or, are you worried that your kids won’t adapt well to your divorce?

If so, Collaborative Divorce can provide you with access to a specially-trained child specialist who can help you get through your divorce in the way that twill do the least damage to your kids.

5. Are you and your spouse both willing to voluntarily provide accurate and complete financial information?

If not, litigation may be your only option. All of the other divorce processes rely on you and your spouse to voluntarily come clean about your finances. Otherwise they won’t work.

6. Are you completely lost when it comes to your finances?

If so, collaborative divorce can help you a lot. In Collaborative Divorce you will have the benefit of having a divorce financial planner to guide you through your financial issues. This extra expertise can help a lot if finances aren’t your thing.

7. Do you (or does your spouse) own a business?

If so, you're going to be way better off staying out of court. That way you can make sure that whatever divorce process you use, the professionals involved in the process understand and have experience with dividing businesses. (Judges are great, but they're randomly assigned. The judge you get may or may not have the level of expertise you want or need to deal with your business issues in a divorce.)

8. How much do you have to lose?

The bigger your marital estate, and the more complicated your investments are, the more you would benefit from staying out of court. That will give you more control over your divorce process. It will keep your divorce more private. And it will ensure that you have professionals involved who will understand what's going on with yo

If you’re still not sure which divorce process would be right for you, you can check out this article: Everything You Need to Know To Choose the Right Divorce Process For You.

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