Options for Divorcing Couples
HOW DO THESE ISSUES GET DECIDED?
There are a number of procedural models which may be used to reach resolution of these issues. The methods vary in degree of attorney and court involvement, conflict and cost. Every issue in a divorce case may be resolved by (1) the parties reaching an agreement or (2) having a contested hearing after which a judge or court commissioner makes a decision. These models include:
- Collaborative Divorce
- Pro Se
- Traditional Litigation
WHAT IS COLLABORATIVE DIVORCE?
In collaborative divorce, each party hires an attorney and all four work together in a cooperative, non-adversarial process with a mutual goal of reaching a fair settlement of all issues.
The parties and attorneys communicate and negotiate directly with one another in structured four way settlement meetings. Binding commitments are made by both parties and their respective attorneys to voluntarily disclose all financial and other relevant information, to proceed respectfully and in good faith in settlement negotiations and to refrain from the threat or use of litigation.
The parties agree that they will not go to court and if anyone wants to do so, both attorneys must withdraw. If required, experts are brought into the process as neutrals who are jointly retained by the parties.
In addition, collaborative divorce may involve a team approach; possible team members include financial advisors and mental health professionals.
The parties hire attorneys as settlement specialists. This process encourages creative problem solving, win-win negotiations, and resolutions that meet the needs of all members of the family. International experience indicates that collaborative divorce produces better results for children, greater satisfaction of the parties, and parties who are less likely to return to litigate future issues in court.
More importantly, the parties are directly involved in the process and retain control over the outcome. For more information the collaborative law process, please visit the Collaborative Family Law Council of Wisconsin, Inc. website.
WHAT IS MEDIATION?
In mediation, the parties hire a neutral third party to assist them in reaching agreements. The mediator can provide information about the legal process and guide a discussion to help resolve issues.
The mediator may or may not be a lawyer. The mediator does not represent either party and cannot provide legal advice. Mediation may occur with parties who have hired attorneys or parties who are not represented by attorneys. The parties communicate with one another directly in the presence of the mediator.
The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle.
If the parties proceed in mediation without attorneys, they must still prepare all the required forms for the court, though a mediator may help prepare forms for the parties.
WHAT IS A PRO SE DIVORCE?
In a pro se divorce, the parties do not hire attorneys, they do it themselves. They proceed on their own to draft and file the necessary court documents including the summons and petition, financial disclosure statements, any motions, the marital settlement agreement, if any, and the final judgment of divorce.
In some areas, pro se form kits are available at the courthouse. For example, in Milwaukee County, pro se packets are available for a small fee in Room 307a. The husband and wife must either work out an agreement together or present their legal issues to the court.
If an issue is not agreed upon, the parties have to be prepared to act as their own lawyers, which means they must call witnesses, ask questions of the opposing party and tell the court why their request for specific orders should be granted.
WHAT IS THE TRADITIONAL LITIGATION MODEL?
In the traditional divorce, both parties hire attorneys. The attorneys provide legal advice and represent the positions of their client in negotiations and court hearings. This model is an adversarial process in which each attorney advocates positions based on the personal needs and viewpoints of their client.
The parties communicate through their attorneys, rather than directly with one another, regarding their positions, proposals and counterproposals on the issues in their divorce. The process may involve the use of formal legal procedures, known as “discovery” to secure financial and other relevant information. This may include the use of depositions (a formal taking of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues.
Each party may hire experts to support their positions. Experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants, and other investigators.
If the parties dispute the legal custody or physical placement schedule for their children, the court will appoint a third attorney, called a guardian ad litem, to participate in the case as an advocate for the “best interests” of the children.
Ultimately, if agreements are not reached, parties and other witnesses testify before a Judge who makes decisions on each disputed issue. Most litigation divorces are eventually settled after substantial time, money and emotion has been spent in conflict.