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Finding Your Optimal Path for Legal Representation When Contemplating Divorce
When contemplating divorce, there are understandably a significant amount of personal and practical considerations to examine. A good place to begin is to familiarize yourself with the process you may soon navigate and build a thorough understanding of the legal options available to you. The destination might be the same for each option (the dissolution of your marriage), but the journey to get there can be vastly different. Given that this one major event will impact the rest of your life, it is important to find the dissolution path that will ultimately lead you to a fair settlement free of surprises and regret.
The first step is to decide between hiring legal counsel or the Do-It-Yourself (DIY) option. Many couples prefer the DIY method in the hopes it will allow them to save legal fees, keep their private matters private (out of the purview of family court), and save time. In fact, as many as half of the divorces in the United States are accomplished without legal representation. Why is DIY not recommended? The marriage dissolution process is filled with many potential pitfalls and not having the best professional expertise on your side could result in a multitude of consequences, such as: an unfair settlement agreement, significant tax ramifications resulting from a poorly constructed property settlement, negative tax consequences from incorrectly filed tax returns in the year of the divorce, hidden assets by one or both parties, unchecked influence of one party over the other, and the list goes on. If there are any complexities in your particular marriage, then hiring professional legal, and often financial, help can be critical to ensuring your best interests are looked after.
If the decision has been made to engage legal representation, the next step is to understand the types of legal paths you can undertake, as that will determine the type of family law (divorce) attorney to hire.
Mediation is a popular option today, as it is considered a more cost-effective, time-efficient, and amicable path to divorce. During mediation, a neutral mediator works with both spouses to reach an agreement on each component of their divorce. Since the process of private mediation takes place out of the courtroom, the details of your divorce also remain private. The mediator does not advocate for either side, and cannot provide legal advice, even though his or her background might be as a divorce attorney or family law judge outside of the mediation room. Both spouses should have their own individual attorneys and financial professionals to consult throughout the mediation process and to review the final settlement agreement prior to execution. For more details on the mediation process, see our article Four Essential Steps to Level the Financial Landscape of Divorce Mediation.
Collaboration, or collaborative divorce, can be thought of as a “team approach” to the divorce process. The divorcing couple engages a team of professionals from the legal, financial, and mental health fields to work together to reach a divorce settlement. An attorney is retained by each party, and these collaborative law attorneys are specially trained in this unique type of dispute resolution. Collaborative divorce is considered successful when solutions are agreed upon that meet the needs of both parties. If the collaborative process fails, it is important to understand that the attorneys retained by both sides are then disqualified from any further involvement. At this point, both parties would be starting from scratch – having to retain new legal counsel and starting down a new path to dissolution.
Arbitration is not a widely utilized path to divorce, as it requires both parties to hand over decision-making control to a third-party arbitrator. During the arbitration process, the neutral arbitrator meets with both parties without legal counsel present and then decides the final settlement. This final decision is considered binding in many states. Arbitration is generally best suited for situations where the two parties have reached an impasse during negotiations and are willing to accept the final decision of the arbitrator.
Traditional divorce litigation is the process where each party obtains separate legal counsel and the parties attempt to negotiate an agreement. If an agreement cannot be reached, the case moves on to trial in front of a judge. According to the Institute for Divorce Financial Analysts™, only 5% of divorces end up in trial, so many litigated divorces reach settlement without involving the courts. During trial, the presiding judge listens to the evidence and testimony, then comes to his or her binding decision about how to allocate property and money, and if applicable, the custody of children. The judge knows very little about you, but he or she will have a major role in determining how you will live your life going forward.
Just like how no two marriages are the same, neither are any two divorces. For the sake of your future life, if the dissolution of your marriage is your path, focus on fortifying yourself with the best tools available to reach a settlement agreement you are content with. The purpose of this article is not to break down every pro and con of each type of legal representation, but rather to help explain the high-level differences so you have a better understanding of your options as you think through your next steps. You should always consult with legal counsel to understand the full breadth of their offering. If you’re unsure how to move forward, please reach out to a Sand Hill Wealth Manager to talk through your options.
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