Divorcing Couples Have Options: Choosing the Right Process for Your Divorce

May 17, 2017

Divorce is never easy.  You can, however, make the process go more smoothly by choosing the right process option for you, your family, and your situation.

Traditional Divorce.  In a traditional divorce case, each party is free to hire an attorney of their choice or to proceed “pro se” (i.e., unrepresented).  The attorneys provide legal advice to their respective clients and advocate their client’s positions to the spouse’s attorney (or, if one party is unrepresented, to the unrepresented spouse) and to the court.  In cases with two attorneys, most communication and negotiation occurs between the attorneys, with each attorney relaying their client’s position to the other attorney, who then works with their client to formulate a response.  This back-and-forth negotiation process continues until a resolution is reached and a settlement agreement is signed by both parties.  Any issues that remain unresolved are decided by the Judge after a contested trial, in which the rules of evidence and formal procedures are followed.

Mediation.  Mediation is a voluntary process in which the parties agree to engage the services of a neutral third party to assist them in working through the various issues that need to be resolved in their divorce (property division, custody and placement, support, etc.).  The mediator does not represent either party, provide legal advice to either party, or make decisions for the parties.  Instead, the mediator provides information about the law and the legal process, leads the discussion, and assists the parties in coming to their own agreements.

Collaborative.  The Collaborative process is one in which the parties agree to settle their disputes out-of-court with the assistance of their own, separately chosen, attorneys.  At the start of this process, the parties and their attorneys sign and file an agreement whereby they commit to  the open exchange and disclosure of financial and other pertinent information, to proceed respectfully and to engage in negotiations in good faith, and to not use, or threaten to use, the Court system to resolve disputes.  In addition to the attorneys, who provide legal advice and guidance to their respective clients, Collaborative divorce cases often include the involvement of non-attorney professionals who provide expert advice and guidance to the parties on the specific issues that need to be resolved.  These experts can include appraisers, financial experts, and mental health professionals such as divorce coaches (who help the parties with the emotional aspects of the divorce) and child specialists (who assist the parties and their children with respect to custody and placement issues).  In the event the parties are ultimately unable to reach a resolution of all issues, the parties can end the Collaborative process and ask the Courts to resolve their disputes.  They would, however, be required to hire new attorneys, as their Collaborative attorneys would be disqualified from representing them in any contested proceedings.

Amicable/Cooperative Divorce.  While not necessarily a separate process option, in an amicable or cooperative divorce, the parties use the traditional process but with a stronger commitment to reaching a full settlement.  In these types of cases, both the parties and their attorney(s) do their best to resolve things outside of court, to communicate and exchange information informally and openly, to negotiate in good faith, and to use joint experts where possible.  In cooperative divorce cases, it isn’t uncommon for some negotiations to happen directly between the parties, or with both parties and their attorneys all in the room together during four-way meetings.  Having the Court decide unresolved issues is still an option in an amicable/cooperative divorce, but it is not the goal or expectation.

If you have any questions about your options and/or would like to schedule a consultation, please contact Rachel E. Mielke at rmielke@stroudlaw.com or (608) 257‑2281.  Attorney Mielke is an experienced family law attorney, a trained mediator, and is a member of the Collaborative Family Law Council of Wisconsin.

 DISCLAIMER:  The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice.  This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship.  You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.