Which Model is Best for Your Divorce?

By: Jill L. Barr

The end of a marriage is often equated with death. There are various stages of mourning one undergoes upon a "death" of a marriage. The dissolution of a marriage is also a termination of a partnership and thus, in many respects, a business transaction. It is often difficult to competently enter into a business transaction while undergoing the grieving process. Stresses in marriage do not always equate to dissolution of the marriage, but when it appears that dissolution is inevitable, there are various models one can utilize when going through the dissolution process.

These are the primary models which are available to those individuals who are finding themselves faced with the dissolution of his/her marriage. It is important to choose the model that best fits the parties involved. Consulting with an attorney to discuss the various models is an important first step to making a decision. The models are as follows:

Mediation. The parties can engage in confidential mediation with an attorney of their own choosing. Mediation is voluntary and both parties should be able to discuss and represent their interests adequately in a series of meetings between themselves and the chosen mediator. The mediator is a neutral and will attempt to obtain full agreement on all issues. The mediator does not represent either party and will draft all paperwork needed to obtain the dissolution. If the spouses/parties are not equally able to represent their interests in this process, if for example one party feels that the other party is a superior negotiator or feels intimidated/demeaned by the other party, this is probably not the right process for him or her. However, this process can be very successful for many, and although the process involves the two spouses sitting down together in meetings with a mediator, the spouses can also consult with an attorney of his/her choosing. This consultation can be invaluable in preparing for the mediation sessions.

Collaborative Law. Collaborative law is similar to mediation in that it is a voluntary process to which both parties must consent. The goal is to attain full agreement on all issues. This process involves a "team" approach, in that the parties will each have his/her own attorney. Depending on the specific needs of the particular situation at hand, there may be other professionals involved in this process as well. This process, like mediation, involves a series of meetings with the parties and the professionals involved in the case. The "team" may include a financial specialist or child specialist if the parties decide that the input from these professionals will assist them in reaching an agreement. This process is also not for everyone. It can be very beneficial for parties who do not want to engage in litigation, but feel that mediation is not appropriate for their situation. This process allows for parties to reach agreements which are best for them and are not limited by the limitations which can be imposed upon them via the litigation model.

Litigation. One or both parties may simply decide that neither of the two above models works for them, and they may decide to pursue litigation. Litigation does not necessarily mean that all the issues will ultimately be determined by a Judge. In this process there are opportunities to resolve the matter short of a trial, and most cases ultimately resolve without a full trial on all issues. But the parties will likely have needed a Judge to decide some interim issues along the way.

Jill L. Barr is a Partner with Kring & Chung, LLP's Sacramento, CA office. She can be contacted at (916) 266-9000 or jbarr@kringandchung.com.