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Approaches to Divorce

Paul Simon famously wrote about 50 ways to leave your lover, including:

You just slip out the back, Jack
Make a new plan, Stan
You don’t need to be coy, Roy
Just get yourself free
Hop on the bus, Gus
You don’t need to discuss much
Just drop off the key, Lee

But ending a marriage isn’t just about how one gets out the door.  Ending a marriage requires a certain amount of thought and a planned approach to the issue at hand.  There are a number of different approaches to divorce.  Sometimes, a couple starts down one path to divorce and eventually ends up using a different approach.  There is no single “right way” to divorce.  Understanding the options allows couples to consider and make choices about the way or ways that are right for them.

Approaches to Divorce: Mediated Divorce

Some couples are in complete or near complete agreement on the decision to divorce.  They may also be in complete or almost complete agreement on how they wish to divide assets and debts.  If a couple is interested in working together without separate legal counsel to resolve their issues, an experienced mediator can assist in coming to a legally supportable compromise regarding issues such as:

  • The division of property
  • Child custody
  • Child support and
  • Alimony

The benefits to this approach include lower costs to the parties, faster resolution of the divorce proceeding, and, in many cases, a family unit that is stronger than family units that undergo traditional divorce litigation.

Approaches to Divorce: Negotiated Divorce

Most divorce cases resolve short of trial.  Typically, both parties hire their own attorney to represent their interests.  The attorneys then negotiate settlement terms, addressing all legal issues.  Often times, the attorneys engage in discussions over several weeks or even months, attempting to negotiate all issues.  Any issues that are not resolved can be litigated, however, this involves risk, as the court may make determinations less agreeable than those that can be reached by the parties.

Approaches to Divorce: Collaborative Divorce

A collaborative divorce is a new way of approaching an old problem.  Rather than approaching the divorce as a win/lose proposition, in a collaborative divorce, the parties commit to resolving their issues without litigation.  This commitment is so strong that if the parties later change their mind and decide to litigate the issues, the collaborative divorce attorneys remove themselves from the case.

In a collaborative divorce proceeding, the parties, along with their lawyers, meet to work together to resolve the issues in the divorce.  Dividing property, debt, and discussing parenting responsibilities and support are all approached as a team effort, with the goal being resolving the issues in a way that works best for the parties. Because the parties do not have to accommodate a judge’s schedule, they can often resolve their case more quickly than a case requiring court appearances.

Approaches to Divorce: Litigated Divorce

Some cases simply cannot be resolved by mediation, negotiation, or collaboration.  In these cases, the the parties litigate the issues.  In other words, a trial occurs, where the court takes testimony. The lawyers question the parties themselves, along with other witnesses.  The other lawyer then may cross-examine the witnesses. Issues before the court include custody of the children, the parenting schedule, the appropriate amount of child support assessed, the type and amount of any alimony payments, the division of all property, as well as the allocation of responsibility for all debts of the marriage.

A litigated divorce typically takes the most time.  Before litigation, many steps in the process occur first, including pretrial conferences and other resolution attempts regarding the matters at issue.  In some litigated divorces, only one or two issues remain before the court, while in other cases, every issue requires education.

One risk, of course, in litigating the issues is that the court, rather than the parties, decide what will happen in the case.  Further, when the trial court issues a ruling, this ruling may be appealed to a higher court.  This, too, can delay the final resolution of the case.  Once the appellate court hears and decides the case, the court has the option of remanding the case back to the trial court for additional litigation.

Considering Divorce?

If you are considering divorce or would like to discuss the best approach to divorce for you and your family, contact the attorneys at Fait & DiLima.  Together, we can work to find an approach that fits with your needs.  Both Dorothy Fait and Marjorie DiLima are experienced mediators that work with couples to resolve their divorce issues.  Marjorie DiLima is also trained in collaborative divorce proceedings.  Both Fait and DiLima are well versed in the art of negotiation.  Finally, when issues in a case must be litigated, the attorneys at Fait and DiLima have the experience you need.  Contact the office today to schedule a consultation to discuss the facts and circumstances of your case at (301) 888-6384.

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