The Two Most Important Decisions in Divorce
From the moment one partner decides to divorce, the next 6 months to several years are full of decisions.
But there are two legal decisions that will make or break the entire divorce process.
Those decisions are:
What kind of divorce should I get?
Which lawyer should I hire?
Unfortunately, it is not uncommon for people to bypass Decision 1 and jump right to Decision 2. In other words, they pick a lawyer before they even know what kind of divorce they want (and often without knowing what their options are).
When that happens, it is usually because they either got the advice to get a “shark lawyer” OR they thought they needed a shark lawyer. I'm sure you have seen, heard, and maybe even given that advice yourself.
But, I digress.
Since the choice of the lawyer is the second most important decision, I'm going to leave the discussion of choosing a lawyer for the next blog post.
For now we are going to focus on Decision 1: What kind of divorce should I get?
[Here's a disclaimer - what follows is general information, not legal advice. Consult your state’s divorce website at www.divorcenet.com (good, concise, easy to read) or
Why do I say that the type of divorce is the most important decision you'll make in divorce?
As you'll see below, this is the decision that will set the tone for your whole divorce, and for what happens after the divorce. This decision influences the amount of control you have over the process, the amount of conflict in the process, and the cost of the process. And all of that will influence your ability to co-parent after the divorce is completed.
With that said, there are three main buckets of divorce:
In mediation, both partners meet with one mediator, whose role is to help the two partners come to a negotiated agreement. The mediator does not advocate for or give legal advice to one or the other partner. Instead, the mediator helps the couple come to decisions together, based on what they think is best for themselves and for their children. Often, a mediator will recommend that each partner also has their own attorney with whom to discuss things. This helps to make sure that each person is aware of their respective rights in the divorce so that the negotiation can be as viewed as being as fair as possible.
Some great things about mediation are that the partners have full control over the process, there tends to be the least amount of conflict, and mediation can be the quickest and least inexpensive way to get a divorce (not including pro se divorce that couples do completely on their own. But we won't be going into that.).
One thing to know is that since mediation is just you, your partner, and the mediator, it is imperative that you feel comfortable enough to sit at a table with your partner and comfortable enough to advocate for yourself. You also need to trust your partner to be honest with you and to have everyone’s best interests in mind (and the same goes for you). Without those elements in place, a mediated divorce is not likely to be successful or fair.
Collaborative law takes a true team-based approach to divorce. Here, each partner hires their own collaborative lawyer, commits to being honest and forthcoming, and commits to working together to come up with a mutually acceptable agreement. The lawyers also commit to working together to try to find the best agreement for everyone.
What does that commitment really mean? It means that everyone signs an agreement stating that they will negotiate with honesty and in good faith. The partners also agree to complete the divorce with the collaborative lawyers and agree to not go to litigation. If negotiations break down and the partners do decide on litigation, they cannot use the same lawyers and need to start completely over, back at zero, with new lawyers. So, it is important to choose your lawyers and this process wisely.
Like mediation, in collaborative divorces, the negotiations themselves happen with both lawyers and both partners present at the same time. That makes collaborative divorce a very transparent process and calmer than litigation. The lawyers may also bring in other team members, like a certified divorce financial planner so that everyone has a clear picture of the marital finances, a divorce coach or coaches, and a child or parenting specialist.
Collaborative law does tend to be more expensive than mediation since you are paying for two lawyers at the same time, and can take longer since you are working with multiple schedules and multiple personalities. But you will still have more control over the process and the outcome than with litigation. And if you are not comfortable negotiating with your partner, you have your lawyer in the same room with you to speak on your behalf.
This is what most people think of when they think about divorce. Here, each person hires their own lawyer to fight for what they think is best (although sometimes only one person chooses this, leaving the other with little choice). The negotiating happens between the lawyers, without either partner being present. When couples are completely unable to communicate and unable to be in the same room together, this is often where divorce ends up.
Litigation tends to be a long, drawn out, conflict-laden, expensive process, and one in which you have very little control or say. Don't get me wrong; there are times when litigation is necessary (in cases of power imbalance, lack of trust and transparency, concern about hiding assets, abuse, and addiction to name a few). It's just important to realize that it is the most destructive of the options. Litigation tends to increase any conflict that was already there and makes co-parenting after the fact incredibly difficult.
And when parents cannot successfully move on from divorce and into a co-parenting relationship, the children have a much harder time.
So there you have it - mediation, collaborative divorce, and litigation in a nutshell. As I mentioned, there are a few other options, like pro se and arbitration, so research your options and speak to a lawyer to make sure you have all the information you need before making the decision about the type of divorce that is right for you.
How can a certified divorce coach help?
Once you find out the facts about the different types of divorces, you may have a hard time deciding which one is best for you and your situation. In that case, you will find it helpful to speak to a certified divorce coach to help you with the important decision since it will set the tone for you whole divorce process and will significantly impact your co-parenting in the future. A certified divorce coach can help you weigh the pros and cons and each, and help you figure out which option is most in alignment with your values and what you want for your family, and can you help you keep the best interests of your child front and center.
So, consider speaking with a certified divorce coach BEFORE you decide on the type of divorce so you can start your divorce on in the best possible way.
Are you are a physician mom embarking on divorce? Remember that you don’t have to go through this alone. Email me to set up a free consultation.
Your divorce support,
P.S. One final reminder that the above is general information about three types of divorce. Consult a local matrimonial attorney or check one of the websites above.