News: Options for keeping divorce from becoming a fight

By Michelle Ellis, CPA, CVA,
Business Journal, July 25, 2014

Divorce can be a stressful, emotionally draining, and expensive process, but it doesn’t have to be. Every divorcing couple has a choice on how to proceed. There are four ways to get a divorce: litigation, mediation, collaboration and do-ityourself. Litigation, the most common divorce process, relies on a judge to make decisions about issues in the divorce within the framework of the law. While litigation is naturally an adversarial process, it does have advantages. For example, there are deadlines, the judge makes decisions regardless of the degree of cooperation from the parties involved, and there can be enforcement sanctions, if necessary. However, litigation can be lengthy due to congestion in the court system, it can be costly, and the parties lose control over the decision-making.

Note that I cited the judge making decisions as both an advantage and disadvantage, because the judge may not fully understand the details of every issue in the case and may not necessarily make a decision that’s best for the family. Most divorces in litigation end up settling out of court, likely due to a drawn-out court battle that has depleted the funds available to pay for the services of the professionals involved.

Mediation is a process where a mediator facilitates negotiations between the divorcing spouses. A mediator is not a judge and will not make any decisions, nor will the mediator give legal advice or advocate for either party. The advantages to mediation are that the divorcing spouses have control over the process. They are the decision makers, and mediation is typically less expensive than litigation.

However, the disadvantage is that because the mediator does not represent either party, it is up to the parties involved to work together to settle the issues of the divorce. If there is coercive controlling behavior from either party or domestic violence issues, this process will almost certainly fail.

Collaborative divorce is similar to mediation in that the divorcing parties have the decision making power, but there is no mediator. Instead, each party retains an attorney that has been trained in collaborative divorce, and the parties negotiate settlement under the advisement of their respective attorneys. Divorce coaches help the parties manage their emotions and work on more effective communication. A financial professional may be retained to help the parties navigate financial issues and a child specialist will bring the children’s voices to the table.

The advantages to collaboration are that the parties control the outcome and have a team of professionals to help them make the best decisions for the family. Although the initial cost to retain all of the professionals can be significant compared to the other processes, in the end, the total cost can still be less than litigation.

If collaboration does not work (i.e. the parties cannot effectively negotiate and one, or both, of the parties chooses another divorce option), then all of the professionals involved are prohibited from continuing with either party in their divorce proceedings. This serves as an incentive for the divorcing parties to stay in collaboration so as to not have to “start over.”

Do-it-yourself is a fairly self-explanatory process; that is, you do it yourself without an attorney. The primary advantage is that it is the least costly of all the options. However, there are numerous disadvantages. First, there could be unknown complex legal and financial issues that could have long lasting negative effects if not handled appropriately. Also, since each party is self-representing, each party is treated as a lawyer in court and is expected to act at that level.

Divorce is complicated, both legally and financially, and this process should not be used unless the divorce is extremely simple (i.e. short marriage, no children, little or no assets/ debts, comparable incomes, etc.).

A couple contemplating divorce should thoroughly understand all of these options in order to make the decision that’s best for them. To help better understand the advantages and disadvantages of each process, Central Valley Collaborative Law Affiliates holds a free Divorce Options Workshop on the second Saturday of every month. Visit www.divorcefresno.net for additional information.

 

Michelle Ellis, CPA, CVA, is a partner at Stoughton Davidson Accountancy Corporation and a member of the Central Valley Collaborative Law Affiliates.