What Are The Procedural Options For Divorce

WHICH PROCESS IS RIGHT FOR YOU?

There are four basic processes available to resolve divorce and other family law conflicts. Three of these four (i.e., “kitchen table,” mediation, and collaborative law) focus on negotiating a settlement before filing court documents. The fourth (i.e., litigation) is an adversarial approach ending either in settlement or trial. The choice of process not only can determine the amount of time and money required to reach a final judgment but also the direction of a post-divorce relationship. If your marriage is ending, or a post-divorce issue related to child support, parenting time, or another family law matter has surfaced, contact Arlington Heights family law attorney David Saxe today for a consultation. 

In the “kitchen table” approach, the couple directly negotiates the terms of their marital settlement agreement before filing court documents. Commonly one spouse hires an attorney who represents only that person and the other remains unrepresented (i.e., pro se). This process is best suited for low-conflict couples with less complex issues. The benefits of the kitchen table approach include control of decisions, timing, and cost. However, the unrepresented spouse may be at a disadvantage especially if he or she is unfamiliar with family finances. Another potential risk to this process is that it provides no formal method to gather undisclosed information through discovery.

Mediation involves a series of meetings with an impartial 3rd party who facilitates settlement negotiations through exploration of options. Mediation is best suited for couples committed to resolving their differences out of court. In addition to being able to control decisions, timing, and cost, mediation offers the added benefit of a structured process. Further, information discovered through mediation is confidential and generally not admissible as evidence at trial. On the other hand, mediation may not be suitable where one spouse tends to bully, dominate, or overpower the other and like the “kitchen table” approach, mediation does not provide for formal discovery.

Couples who choose the collaborative law approach agree by contract to voluntarily disclose all relevant and material information and negotiate in good faith to reach a mutually acceptable resolution. Each spouse is represented by an attorney trained in the collaborative law process.  Through a series of planned meetings, the attorneys employ problem-solving strategies instead of adversarial tactics. Couples also may engage a divorce coach, child specialist, or financial professional who then become part of the team. Non-monetary benefits also include control over decisions as well as improved communication, problem-solving skills, and co-parenting. One potential risk of the collaborative process is higher costs if either spouse chooses to negotiate in bad faith. Like mediation, the collaborative approach is confidential but does not include formal discovery. Unlike kitchen table or mediation, if the couple cannot reach agreement, the collaborative lawyers must withdraw from the case. Although this rule may concern those who would not otherwise choose to change lawyers, it can reduce the temptation to prematurely abandon the collaborative process for more costly litigation.

Finally, litigation is a process whereby attorneys file court documents, engage in discovery, and attempt to negotiate a settlement. Litigation often is seen as battle to be won or lost. If a settlement cannot be reached, a judge makes decisions about property, money, etc. following the presentation of evidence at trial. Where minor children are involved, the court may appoint a Guardian ad Litem (“GAL”) to represent their best interests in the allocation of parental responsibilities and parenting time. Litigation may be necessary for couples who lack trust, where assets may be hidden, enforceable pre-trial temporary orders are necessary, or children need to be protected from harm. However, by choosing to litigate, especially where the chief goal is to punish, retaliate, or prolong conflict, the parties risk lasting psychological, emotional, and financial harm not only to one another but also to their children.

For questions about the divorce process and whether the collaborative law approach may be right for you, call 224.800.1351 to schedule a free consultation with David Saxe, an Arlington Heights divorce attorney, collaborative law fellow, mediator, advocate, psychologist, and parent who takes great pride in understanding and being responsive to the needs of each and every client he serves.