What are Your Divorce Options?
The only method to obtain a final divorce is through someone filing a complaint with the Court of Common Pleas in the appropriate county and for that court to enter a divorce decree that is legally binding upon the parties. For many cases, the decree involves an agreement that the parties have entered into that is made part of the decree. This is in lieu of a trial where these decisions are made by the court. There are several alternative methods available to you and to me as your attorney to achieve such an agreement, notably: (1) collaborative law, (2) mediation, and (3) private arbitration. There are advantages and disadvantages to each course.
The alternative methods described below allow you to set the timetable and minimize the unnecessary attorneys’ fees generated through litigation by virtue of time required by you and your attorney in drafting documents to be filed with the court and preparing for and attending hearings. I favor both mediation and collaborative law practice as models for families to explore and consider in resolving differences.
Mediation
Mediation is an alternative method of dispute resolution option available to parties undergoing separation, divorce or custody issues. During the mediation process, the mediator does not act as an advocate or a judge would in traditional divorce or custody litigation to solely decide the how to resolve the parties’ case. Instead, the mediator works in a neutral way to assist the parties in working together to create a resolution that works best for themselves and their children.
Parties can mediate issues relating to separation, divorce or custody, such as: co-parenting arrangements, custody schedules, child support, spousal support, alimony, division of property and co-habitation agreements. The mediator will work with the parties to resolve their differences and prepare a written statement of the terms and conditions of the parties’ agreement.
The parties may bring their terms and conditions to independent counsel to create a legally binding contract containing all of their terms and conditions for the agreement. If the mediator is an attorney then the mediator/attorney can draft such an agreement and advise the parties to have the agreement reviewed by independent counsel before the agreement is signed. If corrections or changes are needed and both parties agree, then the mediator will make the changes. The agreement may take effect immediately upon signing and will legally govern the parties until they decide to divorce. Once the parties decide to divorce, the agreement can be incorporated into the divorce decree.
Collaborative Law
Collaborative law is a method of dispute resolution in which each party retains an attorney to advocate their interests. The parties also retain other professionals such as a divorce financial planner/accountant and/or a professional with experience and training as a counselor/mental health practitioner to provide support with communication and parenting. The parties and all professionals sign an agreement committing to working together, outside of formal court proceedings that we refer to as litigation, to arrive at mutually agreed upon terms of an agreement. The parties and attorneys commit that they will not commence litigation. If the collaborative process is unsuccessful and one party or the other seeks litigation, the attorneys involved in the collaborative process must withdraw and new counsel must be retained to start the case over.
In the Collaborative Process, Collaborative Lawyers and their clients commit to resolving all of these issues away from the court and judges. The Collaborative Lawyer is one member of a Collaborative Team of professionals that can help you through this process. Other Team members include a Financial Specialist, Child Specialist and Coach. Neutral Financial Specialists will help you and your spouse gather financial information, develop an understanding of the financial picture created by your family and offer financial options that meet the needs of and are desirable for you and your family. Child Specialists are neutral and ready to assist parents in developing parenting plans and custody arrangements that best meet their children’s needs. Licensed mental health professionals, serving as divorce Coaches, can address the anger, fear, disappointment and regrets of divorce. The care and wellbeing of your children are the priority.
Litigation
In traditional divorce litigation, the parties are adversaries and the decisions are left in the hands of the master or judge. By the very nature of the adversarial court system, divorcing spouses undermine and attack each other. Feelings of anger, frustration and fear may worsen. Judges, who are strangers to you and your family, are left to make important decisions for you about your children and your financial future.
As part of the litigation process, the lawyer has a duty of advocacy and loyalty to the client in the court process. The lawyer must determine, identify and investigate the issues of the case; advise the client of their belief about the law that applies in the particular circumstances, which may or may not favor their client; and inform the client on how they believe the court might rule. The lawyer will then advise the client based on these factors if it is wise to litigate.
If it is determined that the client’s case should be litigated, then both parties go into a court room where the lawyers will cherry pick the best points of their case to present to the judge and knock down all the points that are presented by the other side. Then the Judge has the power to determine how the parties are to resolve their case, which in divorce means – who gets the property, who pays who, and who gets the kids. Sadly this can be a very emotionally and financially draining avenue to pursue and most clients end up feeling cheated after it is all said and done.
With litigation, you have the option of commencing the case by immediately filing the complaint. While it is pending, you can negotiate directly with your spouse. There can also be four-way conferences where the parties and their attorneys meet to negotiate. Various proposals and draft agreements can be exchanged. If agreements are not reached, there will be settlement conferences at the courthouse with a master, who is a lawyer, and will make a recommendation. If you are not satisfied with the recommendation, a trial is held where the parties present evidence in an adversarial proceeding and the judge makes the decision. You would have the right to appeal any such decision to a higher court.
Prenuptial and Marital Agreements
A premarital agreement is drafted prior to the marriage planning ahead in the event that god forbid the marriage fails. Marital settlement agreements are drafted after the parties are married and the marriage has in fact failed.
Prenuptial agreements are very common especially in second marriages where spouses want to preserve their premarital estate for their children from their previous marriage.
Although not very romantic an honest financial discussion prior to the wedding can be a very positive experience. In order to ensure the best results, parties should discuss the possibility of a prenuptial agreement early in their relationship. They should be honest about not only their assets and debts but also their feelings and expectations surrounding the terms of a prenuptial agreement. Lastly, it is important for both parties to have good legal representation surrounding the negotiations and preparation of their prenuptial agreement.
A prenuptial agreement requires a full and fair disclosure of each party’s assets and debts prior to marriage. Prenuptial agreements outline what assets are considered non- marital and not subject to division in the event of a divorce and what assets are going to be considered marital and how they will be divided in the event of the divorce. The prenuptial agreement may also address the amount and duration of spousal support/ alimony in the event of a divorce.
The advantages of prenuptial agreements may be:
- Financial predictability in the event of a divorce
- Inheritances may be preserved
- Pre-maritally owned business interests and personal assets can be protected
- The financial well-being of children from a previous marriage can be secured
- Future costly court battles and attorneys’ fees are avoided.
The downside of premarital agreements may be that:
- It feels like you are planning for a divorce instead of a wedding.
- Prenuptial agreement discussions can often cause friction in a relationship as they may create feelings of distrust or lack of commitment between the parties which may lead to future resentments between the parties.
- Prenuptial agreements are not a guarantee as to how a marital estate will be settled because prenuptial agreements can be set aside for failure to disclose assets and debts, fraud, duress, unfairness, or lack of legal representation.
Amicable Settlements
Amicable Settlements are usually reached with the assistance of one or two attorneys who help parties resolve their legal dispute in a friendly and non- contentious way.
In order to reach an amicable settlement parties must have a desire to settle their matter and be willing to make concessions for the sake of reaching a settlement.
For a divorcing couple, the aim is to try to reach an amicable agreement that resolves all the outstanding issues surrounding their divorce, such as division of assets, support, and custody. It is often helpful to have an attorney or mediator who is knowledgeable in the area of family law to help parties discuss and come to agreements on the terms surrounding the resolution of these areas.
The amicable settlement will lay out the terms for a parenting plan outlining the times each parent will spend with the children.
The amicable settlement will also address the duration and amount of spousal support/ alimony and child support. While the settlement of support may follow state guidelines it may also just be based on the needs of the family that is determined during the negotiation discussions.
The division of the assets will usually center around the division of equity in the marital home, the division of retirement accounts, investment accounts, and bank accounts. These assets may be divided differently depending on the goal of the parties concerning cash flow, income streams, tax consequences, and timing of major life events such as high school graduations, job changes, etc.
The agreement may also address life insurance to ensure that the settlement terms can be fulfilled in the event of the death of either party.
There are many benefits to reaching an amicable settlement, such as:
- Rather than putting your future in the hands of a judge, you can have more control in reaching your desired settlement outcome
- You will spend less money on attorneys because you will spend less time in court
- You can settle the matter on your time clock rather than the court-mandated schedule
- You can make decisions in a calm fashion rather than under duress in a courtroom setting.
Want to Know More?
If you are interested in a consultation to discuss the options available to resolve your divorce, custody issues, support, or equitable distribution issues, please contact me and I can help you investigate your options. Call me, Lenore M.J. Myers, at 215-470-3121 or email me at lmjmyers@cs.com.
