Process

How Do You Want to Get Divorced? An Overview of Your Process Options

When you have made the decision to divorce, it’s important to realize that you have several options in moving forward.  Be wary of an attorney who has a “one size fits all” attitude – your case is unique and may be suited for an option other than the typical one of going straight to court. Here is a brief overview of the different processes to consider:

1. The Kitchen Table. You and your spouse negotiate all of the issues with each other, before either of you files with the court.  Often, when all of the agreements have been reached, one of you hires an attorney that represents only that person to prepare the required documentation for filing with the court. It is possible however, to file the divorce yourself without an attorney. While I do not recommend that you file yourself, many courts, including St. Louis County in Missouri, have forms available online to obtain a divorce. This option is most suited for couples who do not have a high level of conflict, and where both spouses fully understand the finances and property and have a high level of trust between them. 

Advantages: Quick and inexpensive

Disadvantages: No professional advice from an attorney (or only one spouse obtains professional advice) of legal rights and options; no formal method of information gathering (“discovery”) to ensure your spouse is being honest with financial information

2. Mediation. You and your spouse have a series of meetings with a trained mediator (who is also a family law attorney), who does not represent either of you, to negotiate and reach agreements in your case. The mediator’s role is to advise you of the law facilitate negotiations, help generate options, draft the final Separation Agreement, and, if you have children, draft the Parenting Plan. Both spouses are advised to consult with their own respective attorneys during the process but are not required to do so. This option is best suited for couples who do have disagreements but are committed to resolving them outside of court and need the assistance of an unbiased neutral to help reach agreements. 

Advantages: No court involvement; structured negotiation process; couple has control over all decisions

Disadvantages: Could become costly if you pay a mediator and two attorneys; a spouse that is controlling and/or abusive may take advantage of the other spouse during the process (i.e., there is an imbalance of power); no formal method of discovery

3. Litigation. Unfortunately, this is the currently the most common option divorcing couples choose. One spouse files a Petition for Dissolution of Marriage in court. Both spouses hire an attorney. Most often, this is an adversarial process where, if you and your spouse do not agree, the judge makes the final decision after a trial. The attorneys do most of the heavy lifting in this option by preparing the case and arguments, engaging in settlement negotiations and handling any court motions. This option is most suited for couples who have very low trust and no interest in resolving issues out of court. It is also suited for situations where one spouse has been in control of the finances as it provides for discovery. 

Advantages: Formal discovery is available, i.e. subpoenas, depositions; temporary motions may be filed (e.g., restraining orders, child support, and maintenance)

Disadvantages: Often the most expensive option; adversarial couples become more so, eliminating any chance of a successful co-parenting relationship; the judge, who doesn’t know you or your family, makes all of the decisions for you so you have no control over the outcome; deadlines and scheduling are based on the court’s schedule, not yours

4. Collaborative Practice. The couple and collaborative law professionals have a series of meetings in a non-adversarial setting. An attorney specifically trained in Collaborative Law represents each spouse. The couple has the option of retaining other professionals trained in Collaborative Law to assist in the process, including mental health professionals, financial professionals and a child specialist. This process addresses the legal, financial and emotional issues of the divorce. The entire team signs agreements to work collaboratively with each other to problem solve, gather information and explore options.  All agreements are reached before being processed through the court. This option is most suited for couples who are interested in resolving their issues outside of court in a non-adversarial way and may be interested in the help of trained mental health and financial professionals. 

Advantages: Uses a team approach to ensure that everyone is working towards resolving the issues in a non-adversarial, respectful manner; couple has the advice of a team of professionals to cover all aspects of divorce: legal, financial and emotional; couple is in control over the outcome of their process; no court involvement; couple learns strategies in communicating and continuing their post-divorce relationship

Disadvantages: If an agreement cannot be reached (which is very rare), the couple has to retain two new attorneys and incur more legal fees; may incur higher costs depending on how many professionals are involved; if one spouse is not negotiating in good faith, the process is compromised; no formal method of discovery

Whichever option you chose for your divorce process, make sure you are educated and informed about all of the options.Posted by Attorney Sophya Qureshi Raza. Raza practices family law where she effectively guides clients through dissolution of marriage, modifications of prior judgments, and resolving child custody and paternity disputes. She also helps families with legal guardianships and conservatorships for the elderly and disabled.