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Mediation – Collaborative Law – Litigation – What does it all mean?

By The Law Offices of O'Toole & Gunteski LLC

If you find yourself considering a divorce, you are most likely seeking to optimize the end result for you and your family. There are several options available when considering how to proceed with a divorce. There are three general approaches to resolving the dissolution of your marriage and the terms of your final Judgment of Divorce. It is recommended that you discuss with an experienced matrimonial attorney the benefits of the following approaches:

  • Mediation
  • The Collaborative Divorce Process
  • Litigation.

Mediation

Using mediation as a mechanism to come to a Matrimonial Settlement Agreement can potentially avoid the financial damage and emotional havoc that sometimes results in litigated cases.

In divorce mediation, a divorcing couple works with a neutral mediator who helps you and your spouse determine the terms your Agreement. It is critical for the mediator to be neutral and not an advocate for either party.

It is recommended that both parties consult with their own, individual attorneys prior to and during mediation and prior to signing the final divorce settlement agreement often referred to as the final Matrimonial Settlement Agreement.

Very often the mediator in a divorce will outline the terms of a proposed Agreement in a Memorandum of Understanding. The parties may then take the terms of the Memorandum of Understanding to their attorney(s) to prepare a final Matrimonial Settlement Agreement which can be incorporated into a Final Judgment of Divorce.

Mediation sometimes thought of as a better, less contentious, less expensive and dignified way to get a divorce.

However, it is critical to remember that many mediators see their role as mediator as simply bringing people to an Agreement regardless of the ultimate fairness of the result. That is, many mediators don't focus necessarily on evenhandedness and may become focused on getting the matter resolved. This can by its very nature result in an inequitable or unfair agreement - especially to the weaker negotiating party. Many mediators simply try to get you to agree.

To avoid this, it is recommended that you consult with an experienced and knowledgeable divorce attorney who can advise you as to your rights prior to proceeding with and during mediation.

Collaborative Divorce

During a collaborative divorce process both you and your spouse hire an experienced Collaborative Lawyer. Collaborative divorce occurs when a couple agrees to work out a divorce settlement without going to court.

The role of the attorneys in a collaborative divorce is quite different than in a traditional divorce in that the divorcing couple and the attorneys together make a commitment in writing to never go to court. In fact, in the collaborative process the attorneys all sign a formal agreement that requires that both attorneys withdraw from the case if the collaborative process breaks down and litigation commences.

If this happens, both you and your spouse must start all over again and find new attorneys. Neither party can use the same attorneys.

The collaborative process is becoming more and more attractive to educated couples that are seeking to control the outcome of their divorce without the added stresses, both financial and emotional, of litigation.

In this process, the attorneys advise and assist their clients in negotiating a Matrimonial Settlement Agreement. You will have the opportunity to meet with your attorney individually and you and your attorney will also meet with your spouse and their attorney. The collaborative process may also involve other neutral professionals such as a divorce financial planner who will help both of you work through your financial issues and a coach or therapist who can help guide both of you through child custody and other emotionally charged issues.

The benefits to this process include the fact that you control the pace at which your divorce proceeds and you and your spouse set respective goals with your attorneys that become the focus of the meetings.

Even if the collaborative process is successful, you will usually have to appear in family court so a judge can sign the Judgment incorporating the agreement. The same is true for mediation. But the legal process can be much quicker and less expensive than traditional litigation if the collaborative process works.

There are potentially significant benefits to a divorce involving mediation and/or the collaborative process. These can include: a better long-term relationship with your ex-spouse; less stress on children; shorter process to come to terms of an Agreement; reduction in expense of the divorce; control of the process and outcome.

For collaborative law and/or mediation to be successful there has to be full and complete disclosure. So if you have an inherent distrust as to the honesty of your spouse, these processes can have their limitations. If you suspect your spouse is hiding assets/income you need to discuss this with your attorney before determining which process to select.

If your spouse is domineering, and you have trouble speaking up or you're afraid to voice your opinions you will want to be represented in negotiations.

Also, if there is a history or threat of domestic violence (physical and/or mental) towards you and/or your children, mediation and/or the collaborative process may not be a viable option and is not recommended.

Litigation

"Litigation" is a legal term meaning 'carrying out a lawsuit.' The detailed litigation process is the subject of another article which can be found on our blog.

The traditional divorce and most common is the "litigated" divorce. This by no means is a suggestion that the outcome of your case will ultimately be decided by a Judge at the conclusion of a Trial. In fact, a very small percentage of divorces in New Jersey actually go to trial.

Remember, the best divorce attorneys will always strive to come to a favorable settlement with the other party. But if they can't come to a reasonable settlement or if the other party is completely unreasonable then, unfortunately, going to court, or threatening to do so, might be the only way to resolve these issues.

In many cases, the decision to divorce is unilateral -one party wants the divorce and the other does not necessarily want to proceed with a divorce. That, by its very nature, creates an adversarial situation right from the start and often disqualifies mediation and collaborative divorce, since both methods rely on the full cooperation of both parties and the voluntary disclosure of all financial information.

The most important and most difficult parts of any divorce are coming to an agreement on child custody, division of assets and liabilities and alimony payments (how much and for how long). Although you want your attorney to be a highly skilled negotiator, strong advocate, and experienced litigator, you don't want someone who is overly combative. An overly contentious approach will not only prolong the pain and substantially increase your legal fees, it will also be emotionally detrimental to everyone involved, especially the children.

Conclusion - So what should I do?

Weigh divorce options carefully. The bottom line is that every family, and every divorce, is different. Obviously, if you are able to work with your spouse to make decisions and both of you are honest and reasonable, then mediation or the collaborative method may be best. But, if you have doubts, it is good to be ready and prepared with an attorney experienced and capable of litigating your divorce.


ABOUT THE AUTHOR

Darren O'Toole Esq and Michael Gunteski Esq have served as Matrimonial Early Settlement Panelists in Monmouth and Ocean County. They are both experienced divorce mediators and also represent litigants who utilize the services of a divorce mediator. In addition both Darren O'Toole, Esq and Michael Gunteski, Esq are trained Collaborative Law Attorneys. They have extensive experience as family law litigators and are strong advocates for their clients. Serving Monmouth, Ocean and the surrounding counties. Call today to schedule a consultation.

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