Finally arriving at the decision to end a marriage is probably the biggest and hardest decision you have had to make, aside from deciding to become a parent. Now that the choice has been made, both parties need to agree on HOW to proceed.
The process with which you choose to dissolve your legal marriage can be a rough one but knowing your options can make it a whole lot easier. While it is always true that to be fore-warned is to be fore-armed, it most certainly is when contemplating a legal proceeding that has the potential to be emotional. Choosing to stay out of court proceedings is often the way clients choose to proceed when they want to keep resolution from becoming overly adversarial.
Depending on your resources, both financial and emotional, you might want to chose between Mediation and Collaborative Law. In order to do that, you must learn the very real difference between the two.
Divorce mediation is a cooperative divorce method (alternative dispute resolution process whereby a neutral third-party (the Mediator) will help and guide a couple through resolving the issues and financial matters of divorce.
Mediators are not mandated but can be licensed attorneys depending on the firm. At no time during mediation are attorneys required, unless either or both parties choose to involve them. That makes mediating a good option for those who prefer to divorce without attorneys. However, many mediators require parties to have consulting attorneys to help ensure that both parties are aware of the rights and responsibilities in order to reach a fair resolution.
A Mediator’s primary functions include: helping both parties sort through relevant subjects to be addressed in your divorce so that informed decisions can be made by each; act as neutral peacemaker on any areas of disagreement and bring customized resolutions pertaining to the unique needs of your children pertaining to your parenting plan and timesharing, child support, alimony (spousal support/maintenance/spousal maintenance), division of marital property, etc.; and draft much of the required paperwork including a Memorandum of Understanding which outlines the tenants of your agreement.
Many couples also choose mediation because it can be informal and flexible, with all parties working towards the same goal, and the mediator having no actual power to decide the case. Instead, the Mediator functions as more of an advisor, so in the end, the divorcing spouses are left with the ultimate decision. Mediation can also take less time and potentially cost much less compared to litigation.
Collaborative divorce (also known as collaborative law process) is a hybrid between a "traditional" divorce using attorneys and divorce mediation.
The biggest difference between this process and mediation is that each party hires his and her own licensed attorney and that professional’s primary role is to see after the concerns of the client who hired him. Just like in traditional divorce situations, a lawyer’s job is to get the most favorable outcome for their one client. What makes a collaborative divorce different from those traditional proceedings is a contract know as the “Participation Agreement”, a document signed by all involved attorneys stating commitment to using cooperative rather than combative tactics to negotiate the various divorce issued. After this, a series of meetings take place between both spouses’ respective attorneys, and any other outside professionals required (such as financial professionals, child specialists, mental health professionals and mediators to negotiate and try to come to agreement on the subjects.
The collaborative process can take a long time and can get quite expensive, especially if those professionals are called in on multiple occasions. Ultimately, if an agreement cannot successfully be reached using the collaborative process, the two divorce attorneys will be disqualified from representing the parties (spouses) and the couple will have to continue through the family law proceedings by starting completely over, including with new attorneys.
But choosing between Mediation and Collaborative Divorce ultimately comes down to what the parties feel comfortable with. Mediation is reliant upon one person to ensure that the spouses who have chosen to separate, for whatever reason, cooperate, listen to each other and strive to reach a resolution beneficial to all. This may be impossible if the reasons behind the divorce are particularly acrimonious. If this is the case, husband and wife might feel more comfortable having a licensed professional doing most of the heavy lifting on the party’s behalf. Both options, if successful, keep you out of the family court system, and both can be effective in making a divorce less complicated.
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