When individuals contact my office regarding a potential divorce, one of the frequent statements that I hear is that the person would like to "educate themselves about the process." Most people do not realize that there is more than one method for handling a divorce. It is important to sit down with an attorney who is collaboratively trained and open to explaining your different options so that you can decide what is best for your family. Below is a brief outline of the different methods that you should discuss and consider:
- Team of collaboratively trained professionals who help the parties work through all of their divorce issues, without going to Court. This includes an attorney for each spouse and usually a mental health professional and financial specialist.
- Parties do not need to be 100% amicable. This process can be most beneficial in highly contested, emotional cases, since it is equipped with the professionals and structure to handle the same.
- A series of settlement meetings are held until resolutions are reached on all issues. The focus is on long term goals and quality resolutions unique to the family.
- Disputes and concerns that develop during the process are addressed with the entire team present.
- When children are involved, this process provides a much safer and more open and honest environment to discuss all of the sensitive and important issues related to children.
- This process negates Court deadlines and allows the parties to control the pace.
- Emotions are addressed head on, giving the parties the opportunity to heal on a deeper level and, as a result, the ability to move forward and create healthy post-divorce relationships.
- Parties are less likely to end up in Court after the divorce is finalized because they were intimately involved in reaching a settlement and understand the "why" behind each agreement. If issues do arise, the parties are likely to continue using the collaborative process to resolve post-Judgment issues.
- The case is initiated when one spouse files a Complaint for Divorce at the appropriate Circuit Court.
- The Court will issue a Scheduling Order with deadlines for various stages of the case i.e. the filing of witness/exhibit lists; discovery cut-off date; date of settlement conference; and in most counties, the date by which parties must attempt mediation.
- In most situations, the case must be completed within one (1) year from the date of filing.
- The attorneys and parties spend a majority of their time preparing for a trial - conducting formal discovery; taking depositions; interviewing witnesses and potential expert witnesses; preparing the client for testimony; and developing the client's story, theme, and arguments.
- If there are disputes pending the final Judgment, they are usually resolved by filing a Motion with the Court and attending a hearing in front of the Judge who will ultimately make a decision.
- The parties may or may not reach settlement on some or all of the issues pertaining to their divorce.
- Mediation is an out of Court process utilized for resolving divorce matters. A neutral third party, who does not represent either spouse, will facilitate discussions between the parties to help them resolve their issues, if possible.
- Sometimes mediation is initiated before a divorce case is filed or in the beginning stages of a new divorce case. Other times, mediation is scheduled closer to the parties' trial date and sometimes as one last attempt at resolving the case before trial.
- Mediation can involve more than one session depending on the parties' progress and desire to continue with the process.
- This method is informal and all discussions remain confidential (with a few exceptions).
- Mediation is non-binding unless settlement is reached, at which point the agreement can be reduced to writing or audio recorded and then transcribed at a later time.
- Parties may attend mediation with or without attorneys involved. However, it is important to note that the mediator cannot provide legal advice to either party and/or advise them as to what is in their best interests, as they are a neutral.
- Like mediation, arbitration is voluntary. Unlike mediation, arbitration is binding. The parties must agree, in writing or in open Court, to have an arbitrator make binding decisions.
- The parties are required to waive their rights to trial in order to participate in arbitration, and must specifically state what issues will be arbitrated. Parties can agree to have all issues of their divorce decided by the arbitrator.
- Arbitration is more private than a trial, as it is not conducted in the public courtroom.
- Rules of evidence are generally followed, but sometimes more relaxed.
- The parties must pay the arbitrator, in addition to paying their attorneys.
- The portion of the arbitration hearing that concerns child support, custody, or parenting time must be recorded. It is not required that other aspects of the hearing be recorded, but the parties can agree otherwise. The arbitrator may also record the hearings to be used only by him/her to aid in reaching the decision.
- The arbitrator will issue an Opinion and Arbitration Award and appeals of this Award are much more limited than an appeal after a Trial Court decision.
*For more details on any of the above methods, please see the "Practice Areas" page and click on the specific method that you want to learn more about. Also, do not hesitate to contact our office to schedule a consultation and learn more directly from Attorney Jessica L. Pospiech.