Mediate, Collaborate or Litigate in Divorce?

There are three ways to get divorced. The first is mediation. The husband and wife meet with a third party neutral, who is usually a lawyer or retired judge, to craft a Separation Agreement that meets their needs. Customarily, the issues are child support, alimony, parenting plan and division of the marital estate. The marital estate may include the marital home, investment accounts and marital debt. Sometimes the lawyers play an important role behind the scenes advising their clients on whether the proposed agreement is in their best interests.

If the husband and wife trust each other, and that is a big “if,” then mediation can work.
When the issues get complicated or more contentious, however, the husband and wife should consider a second option. This is the collaborative approach where they retain their own legal counsel through-out the entire negotiation. The trust factor is as critical here as it is in a mediated divorce. In a collaborative divorce, the husband and wife have their own legal counsel but agree not to litigate or threaten to go to court if the negotiations go sideways. If one party goes to court, then the collaborative law agreement states that the parties will have to retain new counsel and start-over. This deters the parties from walking away from the bargaining table.

In a collaborative divorce, both sides can retain experts as needed. These include CPA’s, business appraisers, real estate appraisers, psychologists and social workers. There is also a coach who is neutral, and whose job is to keep everyone on track.

Mediation and Collaborative law are not appropriate if there is a lack of trust between the parties. When there are allegations of physical and emotional abuse, or financial dishonesty, then litigation, as the third approach, should begin as soon as possible. If the husband or wife, or both, have narcissistic tendencies, then family finances and the well-being of the children often become secondary to winning the conflict at all costs; children and family finances become the collateral damage.

Filing a Complaint for Divorce in the Probate Court may also stop the damage that mediation and collaborative law cannot. Once the Divorce Complaint is served on the opposing party, the Automatic Restraining Order goes into effect. This prevents one party from dissipating, selling, removing or encumbering joint marital assets. If there is an allegation of physical or emotional abuse, a 209A Restraining Order to prevent abuse may be sought in the District or Probate Court. This is to be distinguished from the Automatic Restraining Order which enters when the divorce action begins and does not require the action of a judge. A 209A action, however, requires a party to take affirmative action to get relief from the Court.

Getting divorced is challenging on many emotional and financial levels. If you would like to discuss your options in more detail, call our law office, or schedule an appointment with Attorney David Rubin.