Cooperative, Collaborative, Mediated, Adversarial & Litigated Divorce
- Cooperative Divorce
- Mediated Divorce
- Choosing the Right Mediator
- Collaborative Divorce
- Negotiated Adversarial Divorce
- Litigated Divorce
- Commencing the Action
- Spouse’s Response to Summons
- Emergency Relief Motion
- Financial Disclosure
- Settlement Negotiations and Court Conferences
- Preliminary Conference
- Note of Issue
- Final Disposition
The decision to seek a divorce or separation is a difficult one under any circumstances. Each matrimonial action is unique to the parties involved. However, one common theme in all matrimonial actions is the importance of having a general knowledge of the applicable law, since decisions need to be made regarding many complex issues at a time of extreme emotional vulnerability. Decisions may have to be made in a short time regarding settlement offers, custody and visitation, and distribution of property that can affect the quality of life for you and your children for years to come.
The eight phases of divorce or separation are:
- Finalization by judge/court
A divorce can go any of several ways—ranging from a relatively easy, quick, and inexpensive settlement to a vicious battle that lasts years and costs tens of thousands of dollars. It depends in large part on whether you and your spouse are in dispute over any aspects of the divorce, and if so, over how many and how vehemently.
When spouses cannot agree on all of the settlement terms, the divorce is considered adversarial. There are different ways to resolve an adversarial divorce, but each requires the assistance of outside help.
In a cooperative, or uncontested divorce, the two spouses are on relatively good terms and mutually accept that the marriage is over and agree on all other important issues. What’s more, the two parties remain in agreement throughout the divorce proceedings and afterward, when the terms of the agreement are enforced.
In such an ideal scenario, you and your spouse may go to a café and calmly, if sadly, decide to end your marriage without lawyers, or any other type of outside intervention. Over a cup of coffee you discuss and scribble down the terms of your breakup on a napkin.
Together you decide all the major issues, such as where each of you will live, with whom any children will live and how you will co-parent them, and how will you divide your belongings, bills, savings, retirement plans, and other finances.
A cooperative divorce that pans out as planned will be faster and cheaper than any contested divorce. However, even if you decide a cooperative divorce is the right option, I strongly advise you to have at least one consultation with a matrimonial lawyer before sitting down with your spouse to set out the specific terms of your divorce or separation. A good divorce lawyer will tell you which issues you and your spouse should discuss and agree on, including things your spouse may be unaware of or not think of. The lawyer will advise you of your rights and may recommend what she or he, as your attorney, believes are your best options. This professional advice and expert second opinion will be well worth the investment, providing you with guidelines to follow when discussing the terms with your spouse.
Whatever terms you and your spouse agree upon, make sure to document them. I recommend that you then have your attorney draw up the legal settlement and file it on your behalf.
Mediation is a process by which you and your spouse sit down with a neutral, objective third party and endeavor to reach agreement on the issues that you are unable to resolve through talking directly with each other. A mediator is a facilitator whose sole job is to guide you and your spouse toward a mutually agreeable compromise. Although a mediator can advise both you and your spouse on the letter of the law and suggest legally viable compromises for the two of you to consider, a mediator cannot provide individual legal advice or legal representation to either of you. No mediator can or should make legal decisions for you, and no mediator should ever coerce or bully you into agreeing to anything.
The purpose of mediation is to assist you and your spouse in carefully considering and trying to reach agreement on disputed issues in a controlled environment in which logic, rather than emotion, prevails. Mediation is not the place to air or resolve marital problems. Just as a mediator cannot provide individual legal counsel, neither is it the mediator’s role to provide marriage counseling.
Mediation can save time and money—provided that all of the following apply:
- There is a balance of power between you and your spouse.
- Negotiating a fair settlement is a priority to both of you.
- You feel confident that someone with an air of authority and good negotiating skills will be able to help you and your spouse reach a compromise.
- You have a small number of tough issues to resolve.
Note that mediation is not recommended for couples with a history of domestic violence.
Most mediators are either lawyers or therapists. In most cases, it is best to hire a mediator who is a divorce attorney and has training and experience in both mediation and family counseling. Psychologists with extensive divorce mediation training and experience can also be helpful when emotional issues are preventing those issues involving children. Whether you choose a lawyer or a therapist as a mediator, make sure to choose an experienced professional with expertise in the legal, financial, and emotional aspects of mediation, and don’t be afraid to check references.
Collaborative Divorce is a matrimonial dispute resolution process in which both parties and their counsel commit themselves to resolving their differences fairly and equitably without the threat of court. It is a cost-efficient and respectful way of reaching a successful and effective agreement.
Collaborative method uses a team approach to identify interests of each spouse and the family in order to maximize options for resolving disputes. The Team usually includes the spouses, an attorney for each spouse, a neutral divorce coach who is a licensed mental health professional and a neutral financial planner. Collaborative Divorce is an innovative way of divorcing, developed as more and more couples have sought a respectful, non-adversarial process. Making the choice to divorce in the Collaborative Process, with the support of the Collaborative team, can have long lasting benefits for the entire family.
Both spouses and their attorneys sign an agreement that requires the attorneys to withdraw from the case if a settlement cannot be reached and the case goes to court. This is a basic protection for both parties as any threat to stop the process and choosing to go to court cannot be used as a threat or an ultimatum. Anything discussed during the collaborative process is confidential to that negotiation and cannot be used should the case go the process of litigation where both parties would have new attorneys in an adversarial process.
An adversarial divorce is one in which each spouse retains a lawyer who is dedicated to representing and protecting the interests of that party. The two lawyers will try to negotiate a divorce agreement outside of court. If they succeed, that is a negotiated adversarial divorce.
Once you and your spouse have each retained an attorney, the two lawyers will begin the negotiation process. This consists of a series of meetings—which can be in person, on the phone, via e-mail, text messages, letters, or any combination of these—until they reach a settlement or determine they cannot. The results of these negotiations are often detailed in settlement letters.
The rounds of a negotiated adversarial divorce go something like this:
1. The lawyers exchange basic information and formal introductions, if they do not know each other.
2. The lawyers discuss the initial steps they will take in the case and may even identify the main issues or problems they will need to address in hammering out a settlement.
3. You and your spouse will each fill out a financial disclosure form, called a net worth statement, under your respective attorney’s direction. The attorneys will then exchange these financial statements as well as any other pertinent financial documents and expert reports.
4. If there are any pressing matters, such as money to pay bills and child-related issues (custody, visitation), there will either be a temporary agreement or one of the attorneys may request court intervention via emergency motion(s).
5. The lawyers begin informal negotiations. Each establishes their client’s opening position and wish lists.
6. Eventually, the attorneys reach a compromise on one issue and then another and another, until an agreement is hashed out—or one or both of the clients call a halt to negotiations and head to court.
Some negotiations take place in a four-way conference that includes the two attorneys and the divorcing spouses. These meetings are usually held in a conference room at one of the lawyer’s offices, with you and your attorney sitting on one side of the table and your spouse and their lawyer on the opposite side.
You should meet with your attorney in advance of any such conference to go over all the issues that may arise during the meeting as well as your financial and life goals. Be prepared to revise or scale back on some of your goals and to set your priorities. You and your lawyer may also need to come up with a worst-case strategy, clearly defining the extent to which you can compromise on specific issues. It is also a good idea to summarize your spouse’s position after each negotiation session—and then hold him or her and their attorney to whatever concessions they made if they attempt to backslide later.
A four-way negotiation can be useful in moving your divorce toward a better, faster conclusion. But if not conducted properly, it can backfire. For example, excessive posturing and chest pounding on the part of one or both lawyers can hinder the process of reaching an agreement. Verbal brawling and unnecessary head butting on anyone’s part is not only unpleasant but it is also unproductive and can escalate costs and incite a negative response from the opposing side. There are instances in which an attorney deliberately engages in this type of behavior to stall the process, because:
- Their client isn’t ready or prepared to settle the case.
- The lawyer isn’t prepared for the meeting.
- The lawyer just wants to burn up some of the retainer before settling (though disgusting, it does happen occasionally).
Another problem that can arise during a four-way is that too much time is spent haggling over a small detail, such as who gets a certain piece of furniture. Most of the time, this has more to do with emotional issues than with wanting a fair divorce settlement. That’s why it is important to work on the emotional aspects with your support team or therapist and focus on the facts of the divorce during negotiations.
There needs to be at least two cool heads in the room at any given time; otherwise too much time will be spent exchanging blows rather than resolving issues. Sometimes, a four-way will briefly break up, either to ease tensions or for private client-attorney discussions. The two sides will separate and meet in a hallway or another room to discuss strategies, offers on the table, and what is negotiable.
A four-way is usually must productive when it takes place near the end of negotiations, when the major issues have been settled and the divorcing parties are anxious to resolve secondary issues. The best-negotiated adversarial cases are those in which the lawyers are knowledgeable, respect each other’s skills, and focus on resolving the issues.
If the negotiations are successful, one of the attorneys will draft the divorce agreement. Each attorney will review the agreement, along with any accompanying divorce documents, with their respective client. Of course, if you have any concerns or questions, you should resolve them with your lawyer before signing. After you and your spouse have both signed the agreement, all that’s left is to file the paperwork with the court and for a judge to approve it.
When all else fails and two embattled spouses cannot reach agreement on all issues of their divorce or separation, the case must be litigated. A litigated divorce is one in which the lawyers representing each of the divorcing spouses present and defend their respective cases in court, and then a judge decides the outcome. Although court-decided divorce settlements are usually fair, the judge’s decision may or may not include the settlement requests of either spouse, even those the two spouses might have tentatively agreed upon prior to the court’s intervention.
Sometimes, a court summons is the only way to get a recalcitrant spouse to stop behaving like an ostrich with their head in the sand and to wake up to the reality that the marriage is over. Similarly, if your spouse or their lawyer will not cooperate in a coherent decision-making process, then you will have no alternative but to involve the courts. Indeed, you may want to begin court proceedings when it becomes apparent that, for any reason, the divorce is not moving forward as it should and the impasse is putting your and your family’s future in jeopardy.
In the best-litigated cases, the lawyers think of the children first and come up with creative solutions to thorny issues and complex financial matters. A good judge, or their court count-appointed attorney, will listen to the disputes and provide guidance in how the court views the problems and the solutions. The judge’s opinion may give you a glimpse of what would happen if the case were to go to trail. You and your spouse’s attorneys should use this information as a guide in negotiating on a settlement, if the divorce has not been finalized and that it still an option.
The typical steps of a litigated divorce are, in sequential order:
- Commencing the action
- Emergency relief motions
- Financial disclosure
- Settlement and court conferences
- Note of issue
- Final Disposition
A matrimonial action legally begins when either spouse files a summons for divorce.
A summons for divorce informs your spouse that you have filed for divorce, the grounds for divorce, and the relief requested. The summons also requests their response and the name and contact information of their attorney.
Spouse’s Response to Summons
Your spouse’s attorney will typically respond to your summons with a document called a notice of appearance. If your spouse fails to respond in a timely fashion, you may be able to get a divorce by default. A default divorce is possible when the defendant refuses to participate in the divorce process—meaning, he or she does not hire a lawyer, respond to court papers, show up in court, etc.
Once the case has been commenced, the plaintiff and defendant enter and exchange their pleadings. Unlike a summons, which contains very general statements, the plaintiff’s pleadings, also known as a complaint, provides details of the reasons for divorce and the relief requested. The defendant’s pleadings, called an answer, may include their defense (justification for denying).
In addition your spouse my choose to bring (make) a counterclaim for divorce, whereby they request the court to grant him or her a divorce and their requested relief and grounds for action.
After the matrimonial action has been filed and while it is still pending in court, you and your children are entitled to live your daily lives in relative security, free of any serious threats to your financial, physical, and emotional well-being. If that security is threatened in any way, your lawyer can file certain motions to alleviate or diminish that risk. This is called a pendente lite (action pending) motion. A pendant lite motion may be for any one or more of the following temporary and immediate forms of relief:
- Child custody (legal and/or physical, sole or joint)
- Child support
- Insurance coverage for you and/or your children
- Spousal maintenance
- Allowing or disallowing minor children to be taken or moved to another state or country
- Restraint of assets (prohibiting your spouse from selling property, liquidating assets, depleting marital monies, transferring for the purpose of hiding assets, etc)
- Financial disclosure or penalties for willfully failing to disclose financial information
- Requiring an abusive spouse to move out
- Protection from harassment and domestic violence
- Payment of your legal fees
- Payment of expert witnesses (although you most first prove to the court that such experts are needed)
A divorce or legal separation can take months, even years, to settle and finalize. In the meantime, your circumstances can change dramatically. During that time, your spouse may stop paying certain bills or significantly reduce his financial contribution to your family. The two of you may be unable to agree on child custody and visitation issues or on which one of you should stay in the family home. Under the stress of a divorce, your spouse may become uncharacteristically verbally, emotionally, or physically abusive. So, even if you don’t need emergency relief at the start of the divorce, you may need it at some point during the divorce proceedings.
At any time after the summons or petition has been filed and before the judge finalizes the divorce, your lawyer can file an application with the court for emergency relief. A judge will review the application, which is filed as an order to show cause. Your attorney then serves the emergency relief motion on your spouse or their attorney, if they have one.
A date is scheduled for the parties and their lawyers to go to court, called the return date. The defendant (or their attorney) files a response to the order to show cause, called an affidavit in opposition. The defendant may also include a cross-motion for emergency relief. A hearing is then held, often on the aforementioned return date, in which the court may hear arguments from both lawyers about whether the court should grant or deny the request for pendent lite relief. The judge may rule on the motion then but may want time to consider the matter further and to make a written decision. This can take one to three months or even longer.
There is a presumption that the monied party in a divorce proceeding will provide for the interim legal fees of the less-monied party unless good cause for not providing it can be shown. In addition, the court is authorized to order expert fees to be paid by the more monied party.
After the initial pleadings have been served and filed and usually before your first court date, you and your spouse will have to make full financial disclosure, unless the two of you have formally agreed to waive this requirement. Courts require financial disclosure via a sworn statement of net worth. A net worth statement provides a detailed accounting of all of your assets, debts, accounts, income, and expenses, which you must swear is accurate and complete (by signing and notarizing). The court may also require both parties to provide the other with substantiating documents, such as tax returns, paycheck stubs, account statements, canceled checks, and asset valuations.
The purpose of full financial disclosure is to give the court a complete picture of you and your spouse’s financial situation.
The discovery part of a divorce consists of those legal actions used to obtain any additional information or documentation that may be needed to make a judicial (meaning, both legal and prudent) decision about any of the issues of the matrimonial action. Discovery may also be required when the accuracy, completeness, and/or legitimacy of any evidence in the case is challenged by either party (or their attorneys) or the court.
The discovery and investigative phase of a divorce may include any or all of the following legal tactics:
- Interrogatories (written questions submitted by one party to the other, which must be answered in writing within a specified period of time)
- Request for documents
- Request for release of information from third parties
- Request to admit evidence
- Request to identify expert witness
- Request for a custody evaluation (conducted by forensic psychologist or psychiatrist)
- Request for medical or mental health evaluation to determine the fitness of a parent in a custody trial
- Request for appraisal of real estate or other property
- Request for valuation of a business, professional practice, or degree
- Court subpoena of either party, corroborative witnesses, or expert witnesses to provide documentation in court
- Depositions of either party or third parties to answer questions under oath at the attorney’s office issuing the notice; to take the deposition with a court reporter present
The negotiations phase of a divorce usually involves a succession of meetings between two parties and their attorneys, which are commonly called settlement conferences. It typically also involves meetings between the two attorneys and the judge, which may or may not require the direct participation of the parties. Settlement conferences and court conferences may be scheduled at any time during the divorce proceedings, until the final disposition is handed out.
The purpose of the preliminary conference is to set forth (establish) the issues in dispute. During this meeting, the judge will also set up a schedule for the exchange of financial information, depositions, and any motions that the lawyers plan to make. The judge will also set a date for the next conference or all subsequent conferences, depending on the judge’s procedures.
After financial disclosure is over and all the necessary appraisals, settlement conferences, and court conferences have been completed, the plaintiff must usually file a note of issueand a certificate of readiness with the court. These documents notify the judge that the parties are ready for trial.
If your case is not completely settled during or after the pretrial conference, the judge will schedule your case for trial. That does not mean your lawyer must or should stop settlement negotiations. Your case can be settled anytime before or during trial. If your case goes to trial, be prepared for several days in court. A trial can last a few days, a couple of weeks, or even several months, depending on the complexity of the issues and the judge’s schedule. Some judges will schedule the trial continuously for days at a time; others will space the trail dates apart. After extensive preparation with your lawyer, you will most likely be called as a witness to testify at your trial. Your lawyer will ask you questions during a session called a direct examination. Then your spouse’s lawyer will ask you questions, which is called cross-examination. Your lawyer should listen closely to the cross-examination and object to any improper questions, which you may not have to answer. Your spouse will likely be questioned in the same manner. The judge may also ask you and/or your spouse questions.
Other witnesses may include third-party experts, such as forensic accountants and psychologists. Sometimes business partners, personal accountants, neighbors, friends, family members, or lovers may be called as witnesses, if they have information on relevant financial, custody, or grounds for divorce issues. Documents and photos may be submitted into evidence as exhibits.
Your and your spouse’s lawyer may each be given the opportunity to make opening or closing statements, at the beginning or end of the trial, which may include the theory of the case. Sometimes the lawyer will also provide the judge with a written brief, or memorandum, which is a legal and argumentative essay that summarizes the testimony and relevant law. The judge usually won’t disclose their judgment on the spot. You may have to wait a few weeks or even months for a decision.
Litigated divorce cases, like other civil (noncriminal) cases, are disposed (ended) through a court order. Most court decisions in litigated matrimonial cases are set forth in a formal written document, which is called a judgment for divorce. The judgment of divorce, which is signed by the judge, signifies that the divorce is official.
If a settlement agreement is reached at the last minute, just before the trial is over, rather than having the negotiated agreement written up, the court may make it official by oral stipulation. This may occur when both lawyers, along with you and your spouse, speak in open court and say that you each accept the agreement worked out by the lawyers and the judge. When you speak in court, the judge may put you and your spouse under oath and ask you questions, for which your lawyer should have prepared for you. The statements will also be recorded by a court reporter so that it can be transcribed. The written version of the oral stipulation is then sent to the lawyers. You and your lawyer should check it over to make sure it is accurate. The terms and conditions of the judgment of divorce to which you verbally agreed in court can then become part of the final judgment of divorce.
Of course, most cases end before going to trial, by the parties voluntarily and mutually reaching a settlement agreement through negotiations and conferences. When that happens, the lawyers will put the final agreement in writing, which will later be incorporated into the court’s final judgment of divorce.
1. Signing a legal agreement without understanding it completely, discussing it with a trusted friend, getting professional legal counsel, and carefully thinking it through.
2. Letting emotions—guilt, loneliness, embarrassment, fear effect your decisions.
3. Not asking for or allowing help from family, friends and others.
4. Confiding too much and to the wrong people.
5. Not knowing your financial situation.
6. Not knowing about or not including all assets and all debts of the marital partnership.
7. Moving out of your family home or leaving your children in your spouse’s custody temporarily when your objective is to remain in the family home or to be the custodial parent. Any temporary arrangement usually serves as the blueprint for the divorce settlement and has a big impact on your case.
8. Continuing divorce negotiations when it is no longer productive or financially or emotionally worthwhile to do so. If you hit a brick wall and can’t find a reasonable way over or around it, litigate and let a judge knock it down.
9. Initiating a divorce but then reconciling or living separate for a while and leaving your divorce action dangling. This enables your spouse to go to court for a final divorce judgment without even telling you. If you file for divorce but decide not to move forward with it for a while or indefinitely, you should request a dismissal of your case.
10. Not clearly and completely defining all of the reasons that led you to divorce and withholding crucial information about your spouse’s misconduct to avoid their wrath, embarrassment, or despair. You are not responsible for your spouse’s feelings. You should be more concerned with giving your attorney the information they need to establish the theory of your case. Your lawyer needs to understand your grounds to build and defend your case.
11. Assuming that your settlement must conform to the terms a judge would order if your case went to trial or to a prescribed formula that does not consider the unique factors in your case. Though some matrimonial laws are strictly enforced, many allow flexibility to accommodate individual circumstances.
12. Settling for less child support than you need and to which you are entitled. This is usually the result of failing to pin down your spouse’s actual gross income or deciding to opt out of the standard child support formula in a misguided or misinformed attempt to act fair, or both. It is important to remember that income is not just earnings and wages, it also includes interest and dividend income, benefits (such as worker’s compensation, disability, Social Security, and veterans, but not public, assistance benefits), pensions, fellowships, and annuity payments. It may also include one-time payments, such as lottery winnings, life insurance policies, gifts, and inheritances.
13. Believing what’s theirs isn’t yours. If you owned 50 percent of a business, you wouldn’t expect to receive a smaller share of the profits simply because you kept things running smoothly “behind the scenes” while your partner was out drumming up new business. Marriage is an economic partnership, and as such, you are entitled to your fair share of all its assets—including your spouse’s new degree or successful business.
14. Failing to ensure support. If you are granted child and/or spousal support, make sure to protect yourself against your spouse’s potential inability to pay by insisting that they take out life and/or disability insurance with you as the beneficiary. That is your only reassurance of continued financial support in the event of your ex’s death or disabling illness or injury.
15. Disregarding court orders. It’s not wise to defy the judge. The penalties can be harsh: disallowing your evidence or testimony in defense of a contested issue or the entire case in favor of your spouse because you failed to show up at a deposition; and awarding legal fees to your ex because they came through with the discovery you failed to provide. If you need more time to prepare for a hearing or provide evidence, have your lawyer ask the court for a reasonable extension in writing—then follow through.
16. Delay tactics. One of the most common ways in which a party in a divorce attempts to impede the process is to fire a lawyer and hire a new one. If you’ve got a good reason to change attorneys, the judge will usually grant you an adjournment (a new court date) to give your new lawyer time to get up to speed on your case. But, if the court views you as having deliberately or repeatedly delayed the case, you may not get an adjournment—and you and your lawyer may not be adequately prepared to fight and win the case.
17. Sleeping with your attorney—or with any person involved in your case, such as your marriage counselor, financial advisor, real estate appraiser, etc.
18. Failure to move on. Now that the divorce is final, give yourself some time to mourn the inevitable loss that comes with freedom. Then ditch your hurt, anger, frustration, disappointment, guilt and resentment. Take a deep cleansing breath, and step into your new life.
- No-fault divorce (irretrievable breakdown lasting at least 6 months)
- Cruel and an inhuman treatment
- Abandonment for a continuous period of one year or longer
- Imprisonment for more than three years subsequent to marriage
- Conversion of a separate judgment
- Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year