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Divorce 101-Different Types of Divorce

If you have decided you want a divorce, you need to decide what method or process you wish to use. There is traditional litigation and there are alternative methods, and you need to consider which one may best suit your circumstances.

Traditional Litigation

This is what most people conceive of as "a divorce." Both spouses are represented by divorce attorneys, disputes can be taken to the court where a judge will decide the issue and sign the final divorce agreement or settlement.

This method is fully "adversarial," in that both sides have their own attorneys and experts and make their arguments to the court. This presumably allows the "truth" to be found, and all assets and income to be uncovered.

Because both sides aggressively argue to their advantage, the process is assumed to produce an equitable result. This, however, comes with a price, in time, attorney fees, expert fees and court costs. The wildcard here is the judge, and their decisions on the elements of the case always carry a risk.

Mediation

One alternative to litigation is mediation. Mediation is far less adversarial, using a neutral mediator, whose role is to help both parties reach an agreement. Each spouse should have their own attorney, who can advise them as to the terms of the agreement, but the attorneys cannot argue or represent the spouse.

Mediation is best suited to divorces, where the finances are straightforward and where the parties are in general agreement. If there is a great deal of animosity between the spouses, mediation is probably not your best choice, as it depends on both parties working together.

Collaborative Divorce

Collaborative divorce is the most recent method devised to reduce the adversarial and combative element of a litigated divorce. The primary innovation is that the attorneys for the parties are contractual obligated to withdraw from representation if the process breaks down and the parties want to "go to court."

This has the advantage of ensuring it is in everyone's interest to cooperate and work toward a positive solution to any issues. Again, the personalities and emotional state of the parties is paramount. Both sides must want the process to succeed and be willing to work to that end.

The downside occurs if the process fails; you and your spouse have to hire new attorneys and revert to traditional litigation.

Pro Se

You can also file a divorce pro se, meaning you act as your own attorney. In all but the simplest cases, this method contains many risks. At its core, a divorce settlement is a contract between you and your former spouse. How confident are you in your understanding of the intersection of contract law and family law?

There are also many procedural rules in family court that are complex and disorienting to a non-lawyer. Mistakes with filing deadlines and evidentiary submissions may literally be fatal to your case.

In addition to these "technical issues," there is the psychological side of bringing a case in court. As Lincoln is to have said, "A person who represents himself has a fool for a client." This is all the more so in a divorce case, where emotions can run high, and even the most rational can become less so.

The first step in determining how you wish to proceed in a divorce case may be speaking with an experienced divorce attorney. They can help you review your situation and discuss the relative merits of each method of divorce. They can advise you of possible problems and help you avoid them.

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