Legal Options for Divorce: Which is Right for You?
There are different choices open to divorcing couples: Pro Se or do-it-yourself, Mediation, Collaboration, and Litigation (most adversarial). In all cases, it is possible to get divorced. The main differences are in the divorce environment (cooperation versus conflict), length of time required to complete the divorce, and the total cost of the divorce process. See our Divorce Options Comparison of Mediation, Collaboration, and Litigation to decide which method is right for you.
PRO SE Process (Do-It-Yourself)
This type of divorce is usually only used when the case is simple and most matters are agreed upon. Some couples use a “kitchen table negotiation” approach to work out their divorce details by themselves. Generally, these cases do not involve children or any significant assets. The cost is nominal often just court filing fees. In low-income cases, court filing fee waivers may be available.
If you are doing your own divorce and want to prepare your legal documents, you can use your County Superior Court “Family Law Self-Help Centers” to get assistance in selecting the forms and instructions for completing them. There is no charge for this assistance; however, you must fill out your own forms. Available forms include dissolution (divorce), legal separation, child custody/visitation, spousal and/or child support, restraining orders, property division, and debt division. Self-Help Centers may also provide general legal information (not legal advice) and case status.
A mediator is an impartial or neutral facilitator available to work with both parties as a resource. The mediator goes through the issues with the divorcing spouses/partners to isolate and discuss disputed items in an effort to reach a consensual agreement that addresses their needs. The mediator does not make decisions, but will help the parties negotiate the terms of their divorce that benefit both sides and are in the best interests of the family. Negotiations include financial asset and debt division, child custody and parenting, child support, and spousal (alimony) support. Since many of the issues that will be discussed during mediation are financial in nature, a mediator that is also a Certified Financial Divorce Analyst® (CDFA™) can expedite the process and would be a good choice.
Once the terms are agreed upon, a “Marriage Settlement Agreement” or “Memorandum of Understanding” is drafted. This document can be filed with the court for enforcement. The couple is still required to file all legal paperwork required by the court for a divorce.
Couples using mediation may also want to have their own attorneys provide legal counsel during the mediation or one attorney to review the legal aspects of the final marital settlement agreement prior to signing. Attorney cost would be in addition to the mediation cost.
In this process, each party has their own “collaborative attorney” to represent them. Both collaborative lawyers commit in writing to use a cooperative strategy (non- adversarial) to develop a divorce settlement outside of court without formal litigation. The lawyers work together through negotiations to develop a full agreement. Outside experts such as a Certified Financial Divorce Analyst® and child expert/therapist can be part of the team. These professionals provide additional guidance to help both sides develop informed and mutually beneficial solutions.
The majority of collaboration divorces settle outside of court. According to the Collaborative Family Law process, in cases where an agreement cannot be reached – the divorcing parties must hire new lawyers to litigate in court.
Litigation in Court Process
“When all else fails” you find yourselves here – in court to get your divorce.
There are really only a few reasons why someone would use court litigation to end their marriage or domestic partnership.
- No Agreement – Divorcing parties require a judge to settle their disputes and divide the marital assets for the couple.
- Better Settlement – One or the other spouse believes they can get a better settlement if the case goes to court.
- Spouse Will Suffer – One spouse believes he/she can make the other spouse suffer more by going to court and dragging out the divorce for months or years, or they are trying to make the divorce more expensive.