Litigation basically means that issues relating to divorce will be settled in a family court. The process typically begins with one party filing an original petition for divorce. The other party will respond by filing an answer or a counter-petition, and both parties typically hire lawyers to assist them in divorce litigation. During the process, both parties and their attorneys will make several appearances in court and in front of a judge. Most divorced people who end up litigating are those in a very high-conflict divorce. The issues that often end up leading to litigation are spousal support, division of property, child custody, and child support.
The collaborative divorce approach is a settlement process that focuses on resolving issues without having to go to court. As part of the collaborative law method, both parties hire separate attorneys whose job it is to help them settle the dispute. In collaborative divorce, neither party is allowed to go to court. If that should occur, the collaborative law process ceases and both attorneys are disqualified from any further involvement in the case. As part of the process, each party signs a contractual agreement, which includes the following terms: disclosure of documents, respect, insulating children, sharing experts, win-win solutions, and agreement to not go to court. Because there is no judge ultimately deciding the parties’ issues, collaborative divorce typically involves a team of professionals who help parties understand and resolve their disputes relating to different issues. This team of professionals may consist of mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed. In the unlikely event that clients are not able to settle all the issues in their case using the collaborative divorce process, mediation can usually settle any remaining issues. In the few cases that don’t end up settling, litigation attorneys can still take the case to court. Collaborative divorce is beneficial for people who want to move through family law issues as quickly and efficiently as possible, without hurting the other spouse or children.
Contrary to what many people believe, mediation is not a stand-alone alternative dispute resolution. Rather, it is a component of the litigation process and usually takes place after a suit for divorce is filed. Mediation is essentially a negotiation facilitated by a neutral third party, a mediator. Mediators do not take sides and their sole role is to help people reach a settlement. The mediator is there to help the parties find common ground and deal with certain expectations that may not be very realistic. The mediator can also help understand concerns, define problems, and offer creative solutions. In most cases, the parties are required by the judge of their case to try to settle their case through mediation before they go to court for trial.
“Kitchen Table” Settlements
This method is the simplest, but arguably requires the most trust for the opposing party. Basically, the parties sit down “at the kitchen table” and come to an agreement about an arrangement that satisfies both of them. After the parties reach an agreement, they can take it to a lawyer to transfer it into a legal format or do it themselves by completing pro-se divorce forms. This method is easy, inexpensive, and works well for couples that do not have children or complicated assets. Of course, couples do run a risk of making mistakes or leaving out important information without the benefit of legal advice.
Do-it-Yourself Divorce (Pro-se)
Divorce kits are available online at https://texaslawhelp.org or at a local law library for those couples who do not wish to involve attorneys. Divorce kits or forms generally provide instructions and a checklist approach to property and child-related issues, so users are not totally unaware of their options and requirements. These forms may be fine for people with no children or substantial assets, but they are not for everyone. When children, substantial real estate, or other major assets are involved, the forms may not be detailed or flexible enough to accommodate what the couples are trying to accomplish. They may also leave little room for creativity, in which case it may be beneficial for parties to seek legal advice.
By: Larisa Martirosova
Larisa Martirosova is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.