The most common question I get asked when first consulting with a client is “What do I need to do and how do I do this?” For most, getting a divorce is like attempting to navigate our way through a foreign country where you do not understand the language or the customs, without a guide book or a map. There are four general topics that require resolution when going through a separation and divorce: property, parenting, spousal support and child support. And, there are four main ways to navigate your way through the divorce process.
The first way is what is often referred to as the “kitchen table divorce”. One or both parties meet with a lawyer and then they negotiate the terms of their settlement on their own. The lawyer will then draft the legal agreement and the divorce documents. The legal agreement and divorce documents get reviewed and signed with each client and their respective lawyer. Yes, it can be that simple!
The second way is for both parties to work with a mediator. I recommend to clients that they meet with a lawyer before attending mediation so that they are entering the mediation process with a framework of their legal rights and responsibilities. If the mediator is also a lawyer, many clients will proceed directly to the mediation process. The mediator works with both parties through a negotiation process until resolution is reached on all issues. The lawyer will then draft the legal agreement and divorce documents. Lawyers may be consulted before or during the mediation process at any time. Both clients must obtain independent legal advice at the end of the mediation process in order for the agreement to be legally binding.
The third way is the Collaborative Divorce Process. In this process, each client retains a Registered Collaborative Family Law lawyer. The process begins with a four way meeting with both clients and their lawyers signing a Participation Agreement that prevents the parties from resorting to the courts. All negotiations occur in face to face four way meetings until resolution is reached on all issues. The clients may choose to obtain additional support from a divorce coach during the process. If financial expertise is required, then a financial neutral is retained. If parents need assistance in developing a parenting plan, they may be referred to a child specialist that meets with the children and brings their voice into the process. At the end of the process the legal agreement and divorce documents are prepared.
The fourth way is the traditional litigation process. This is an adversarial process where each client retains a litigation lawyer to attempt to reach resolution through negotiation. If negotiations are unsuccessful, then court applications are made so that a judge makes a decision for the parties. In some instances the matter proceeds to trial.
The decision on which way to proceed is one that must be made by both parties. It is important to consider the emotional and financial aspects of the each process. Most clients that choose mediation or collaborative divorce do so because they want to make their own decisions and want to minimize the impacts of the divorce upon themselves, their finances and their children.