What Are My Divorce Options?

©2010 by Just Mediation, LLC, for more information: www.xanskinner.com 803-414-0185
A presentation by
Just Mediation, LLC
“Helping People Tackle Problems
Instead of Each Other”

What are my options?
And how do I choose?
Important Disclaimer: The contents of this slideshow represent the opinion of the author in
general circumstances. This is not legal advice for your situation and does not create an attorney
client or mediator client relationship. While it is hoped that this information will help you in
ascertaining your general options, divorce is a serious legal action. Decisions regarding divorce
should only be made after consultation with an attorney in your jurisdiction, not based on material
you read or hear somewhere. Discuss these ideas with your lawyer.

 FAIR
• Need to protect both spouses and children, now and in the future
• Need to embrace values and unique circumstances of the individual family
 COMPREHENSIVE
• Need to provide workable roadmap for present and future needs
• Need to provide closure and finality
 COST EFFECTIVE
• Need for efficient, streamlined process
• Need to ensure that optimum use has been made of services engaged
 OTHER GOALS
• Protect privacy
• Support spouses and children through the divorce transition
• Provide a more positive framework for future dealings

DIVORCE IS A SERIOUS LEGAL MATTER!
 Legal rights need to be protected
 Divorce has long term consequences
 Penny Wise can be Pound Foolish
HOW CAN I KNOW WHAT
LEVEL OF PROTECTION I NEED?

A DIVORCE SOLUTION IDEALLY WILL BE
 FAIR TO BOTH PARTIES
 REFLECTIVE OF FAMILY’S INDIVIDUAL NEEDS, CIRCUMSTANCES, AND
VALUES
 PROVIDE FINALITY (COMPREHENSIVE, ENFORCEABLE)
 WORKABLE
 COST EFFECTIVE

Most divorce cases will be settled through
negotiation, using either mediators or attorneys!
The issue is not whether, but when,
negotiation or mediation will occur.
The crucial questions are: “How much assistance
do I need from attorneys and the judicial process
for this life changing event?” and
“Do I settle my case before, or after, legal procedures have been
set in motion and with, or without, attorney guidance?”

LITIGATED
DIVORCE
• Attorneys direct the show
• Engage in Discovery
(interrogatories, requests
for admission, depositions)
• Litigation attorneys
generally do not buy in to
mediation
TWO
ATTORNEY
DIVORCE
• Focus is on legal rights
• Settle sometime prior to
court
• Attorneys direct process,
negotiate, and decide if
and when to call in a
mediator
MEDIATOR
FACILITATED
DIVORCE
• Agree to fairness
• Agree to full disclosure
• Use unbundled legal
services to assist parties
• Parties are in control of
settlement process
Most divorces are
mediated eventually.
The question is not
whether, but when
to mediate.

Some cases require much more
assistance than others with either legal
advice, judicial process, or both
How can you know in advance how much
assistance you will need from the court
system?

0 1 2 3 4 5
Need for assistance from
judicial process depends
largely on balance of power
Bullying, as
manifested by
•withholding of
information
•threats
•demands out of
proportion to
need
PowerBalanced/Umbalanced

0 2 4 6
Need for advice from
attorney depends on
degree of awareness of
personal values and law
Do you have the
information you need to
make an informed
choice about your
divorce settlement?
•Do you know what
you want?
•Are you aware of
what you would be
entitled to?
•What more
information do you
need to make a
sound decision?

They’re not
trying to take
advantage, but
I don’t know my
rights or needs
Both sides
understand
needs and
rights, both are
committed to
fairness
Don’t know my
rights or needs
and other side
is trying to
exploit me
Know my rights
or needs, but
the other side is
bullying or
threatening me
Power
balanced
Power
unbalanced
Unaware of options Aware of
options

• LITIGATED DIVORCE
WITH SETTLEMENT
• Need power of judicial
process to balance
scales of justice
• LITIGATED DIVORCE
WITH OR WITHOUT
SETTLEMENT
• Need attorneys and
judicial process
• MEDIATED DIVORCE
• Mediator can empower
self aware, equal
parties to forge their
own agreement
• COLLABORATIVE
DIVORCE
• Parties need guidance
from attorneys but do
not need judicial
process
Even power
balance but
parties
unaware of
rights
High
awareness as
well as good
power balance
High
awareness but
power is
unbalanced
Power
unbalanced
and also
parties lack
information

Both spouses are honest, candid and willing to
make full disclosure, committed to fairness in the
process and result, want the best for the other
person (but fairness for themselves).
There may be some degree of distrust of other
spouse, desire to withhold information or suspect
spouse is withholding information.
One spouse is secretive or hoards information, is
manipulative, physically or emotionally abusive,
actively attempts to dis-empower other spouse
and prevent equal access to resources or
information
If your relationship is in either of the
lower of the two descriptions in this
triangle, you should not attempt to
negotiate your divorce without the
help of an attorney.
When power is not balanced in a
relationship, the force of the law is
necessary to protect the rights of the
less empowered spouse.
The further down on the triangle
your relationship is, the more
intervention and assistance you will
need from the court system to
ensure fairness of result.

If you feel you are in the bottom tier
on this triangle, then you need the
services of an attorney and judicial
process to ensure that power is
balanced during your divorce
negotiations.
This is not to say that your divorce
cannot be mediated. Rather, your
attorney will utilize legal tools such
as financial discovery, to balance
access to information and increase
confidence and ability to negotiate.
Most divorce cases that go through
the court system are, eventually,
settled through mediation, but only
after full discovery and financial
disclosure has been completed.
-One spouse is secretive or hoards information, is
actively attempts to dis-empower other spouse and
prevent equal access to resources or information

If you are in the middle tier of this
triangle, judicial process may be
needed, but perhaps can be
avoided if both spouses commit to
and participate in full disclosure .
The assistance of an attorney is
helpful in cases falling in the
middle, to ask the hard questions
and pursue full disclosure.
Collaborative Divorce is the best
option for cases where power is
balanced and both spouses are
committed to fairness, but they’re
not quite sure what is fair, when
spouses want to have attorneys
negotiate on their behalf. .
.
actively attempts to dis-empower other spouse and

If you and your spouse are both
willing to make full disclosure, if you
both seek to be fair, and you want
to do what is best for the family
regardless of what a court of law
might order, then mediated divorce
may be a good option for you.
Either or both spouses may consult
an attorney at any stage and
involve the attorney in negotiations.
And, an attorney may be utilized to
formalize the divorce agreement
into a final divorce decree.
Financial, counseling, and other
experts are utilized as needed to
assist the family in making
adjustments and reaching
agreements.
actively attempts to disempower other spouse and

What are your specific options?

 LITIGATED DIVORCE : two lawyers, court filings, Discovery, expert
witnesses for each, hearings, judicial rulings
 COLLABORATIVE DIVORCE: two lawyers, experts, sharing of
information and experts, all settled out of court
 MEDIATOR ASSISTED DIVORCE: unbundled legal services, sharing
of information and experts, all settled out of court
 THE ORIGINAL COST-CUTTER (Just one lawyer): one lawyer, no
financial disclosure, no experts, settled out of court
 PURELY DO-IT-YOURSELF, WITHOUT ASSISTANCE: no lawyers,
no financial disclosure, no experts, settled out of court

A FULLY LITIGATED, ADVERSARIAL DIVORCE
WITH TEMPORARY AND FINAL COURT HEARINGS
 Parties engage in court ordered Discovery, including Interrogatories,
Requests for Admission, and Depositions
 Private investigators and financial experts are utilized,
deposed, and testify
 A Guardian Ad Litem is often utilized to investigate and testify concerning
what is generically labeled “child custody”
 Temporary and Final Court Hearings are held
 The court calls the shots and makes the decisions
 Attorneys give clients advice, and operate within the analytical framework of
positions that are largely determined by what a court would order
 Cost: $15,000 - $40,000 per side

FULLY LITIGATED, ADVERSARIAL PROCESS …
THAT SETTLES AHEAD OF COURT DATE
 Parties engage in court ordered Discovery, including Interrogatories,
Requests for Admission, and Depositions
 Private investigators may be utilized and deposed
 Financial experts are utilized and deposed
 A Guardian Ad Litem is often utilized to investigate and report
 Temporary hearing is held, with terms of order decreed by judge
 Whatever is ordered in the temporary hearing becomes the status quo
 The court calls the shots and makes the decisions until …
 Evaluative style mediation occurs just prior to final hearing is used to
generate attorney / judicially-oriented settlement options
 Cost: $10,000 - $20,000 per side

COLLABORATIVE DIVORCE:
AN ATTORNEY-DIRECTED PROCESS
 Parties each retain their own, collaboratively trained attorney
 Parties agree to principles of fairness and full disclosure
 The parties agree to share and take advantage of expertise of subject matter
experts, such as accountants and child specialists
 The attorneys may recommend individual helpers such as divorce coaches
or vocational rehabilitation experts
 The parties, and all professionals, agree to settle the case out of court
 Attorneys direct the process and negotiate on behalf of clients
 Average cost: $5,000 - $10,000 per side, depending on services needed

MEDIATOR ASSISTED DIVORCE AGREEMENT
UTILIZING UNBUNDLED LEGAL SERVICES
 Parties commit to principles of fairness and agree to full disclosure
 A transformative style mediator assists the parties in understanding their
conflict better, in developing processes for resolving conflict, and in reaching
agreement that will become their divorce decree
 Experts are engaged as needed to assist parties in reaching fair,
comprehensive agreements covering every aspect of their divorce:
financial and tax experts, child psychologists, individual therapists, vocational
experts, and attorneys to whatever extent they are needed
 Cost: $500 - $4,500 per side, depending on services needed

THE ORIGINAL COST CUTTER:
JUST ONE LAWYER
 The parties agree between themselves on terms of settlement and engage
an attorney just to draft the agreement
 The attorney can only represent one side. The non-hiring spouse is
unrepresented or engages a different attorney on an hourly basis to review
the settlement papers
 There is no mechanism for disclosure or discovery of financial assets
 Outside experts are not utilized for help in formulating financial or parenting
plans or for adjustment and re-employment issues
 If talks break down, divorce becomes contested and both sides must hire
lawyers
 Cost: $500 - $3,000, unless the process falls apart or serious errors occur

DO-IT-YOURSELF DIVORCE
 Parties reach agreement by themselves
 Parties draft their own agreement
 Parties file their own court papers, and appear in court pro se
 Parties may receive advice from an attorney on an hourly basis
 Cost: about $150 - $500 per side
(depending on legal services hired,
and unless serious mistakes are made)

Fairness
Custom Fit
Comprehensive
Practical
Cost Effective
©2010 by Just Mediation, LLC, for more information:
www.xanskinner.com 803-414-0185

LITIGATION COLLABORATIVE UNREPRESENTE
D
MEDIATION
In theory is fair
because decisions
are made after full
hearing on facts,
each party is
represented by
counsel, and the
court is neutral. In
practice, litigation is
fair only if both sides
have relative balance
of resources
Fairness is almost
guaranteed, because
there is full
disclosure,
examination of facts
by financial and other
experts, and each
side is represented
by an independent
advocate who gives
evaluative advice
Fairness is at serious
risk, because there is
no commitment to
fairness, no provision
for disclosure, and
attorney hired by just
one party owes a
duty of zealous
advocacy on behalf
of that client
Fairness is present,
but only if both
spouses are
committed to fairness
and full disclosure
AND if power is
balanced in
relationship AND
both parties have
resources and
awareness to know
what they want or
what they are entitled
to

D
MEDIATION
Solution ordered by
judge will take into
account special
needs and
circumstances, but
will be limited by
legal remedies and
whatever is typically
ordered by courts in
those circumstances
Solution can be
custom tailored and
may utilize expertise
of professionals.
Because process is
typically directed by
attorneys, solutions
may vary according
to degree to which
attorneys impose
legal remedies vs.
empower clients to
be creative
Although parties may
be quite
sophisticated, more
often than not the
parties will not have
knowledge of full
range of options that
are available
Solutions can be
custom tailored and
may utilize expertise
of professionals.
Solutions hopefully
will be tailored to
meet agreed needs
of parties

D
MEDIATION
Judges are experts in
divorce and do order
comprehensive
solutions. However,
items can be
overlooked, and
contingencies are not
planned for (e.g.
parties will have to
return to court to
modify support
orders if
circumstances
change)
Collaborative
practitioners are
experts & will draft a
comprehensive
agreement that will
cover future
contingencies.
Unlike “winning”
parties in litigation,
collab attorneys will
revise agreements
until they reflect the
true intention of
parties
Most parties
choosing this option
either do not have a
need for, or are not
aware of their need
for, a comprehensive
divorce agreement
Quality of a
mediated divorce
agreement depends
upon drafting skill of
mediator. Securing
review by
independent
attorneys provides
feedback and quality.

D
MEDIATION
While court orders
may not be custom
fit, the advantage of
standard remedies is
that enforcement is
through well
established
procedures
The practicality of
agreements arrived
at through
collaborative divorce
is likely to be well
thought out, by virtue
of the legal and
expert-oriented
process through
which the agreement
is made
Unrepresented
litigants are likely to
overlook potential
pitfalls in their
agreements
The practicality of
agreements arrived
at through mediation
depends upon the
skill of the mediator
and the integrity of
the process. When
experts have been
utilized to suggest
remedies and test
the agreement, likely
to be practical

D
MEDIATION
Because it involves
two entire teams of
professionals (his
and hers), escalates
conflict through
adversarial
proceedings, and
utilizes time
consuming Discovery
and hearings,
litigation is the most
expensive option
Although
collaborative utilizes
two attorneys, most
other professional
fees are shared, and
expensive
adversarial
proceedings are
avoided altogether
(no Depositions, no
hearings, no
Interrogatories, etc.)
Much less expensive
This is the least
expensive option,
and also carries the
greatest risk of a
poor result in a major
life transition, setting
the stage for years of
bitterness and regret,
if not actual hardship
Mediation with
involvement of
experts to guide
important decisions,
and assuming both
parties are
committed to fairness
and full disclosure, is
cost effective.
Without such
guidance, mediation
carries the same
risks as
unrepresented
divorce.

1. LITIGATED DIVORCE
2. COLLABORATIVE DIVORCE: Divorce negotiation directed by
attorneys and assisted by neutral experts, with an (enforceable)
agreement not to go to court
3. MEDIATOR ASSISTED DIVORCE UTILIZING UNBUNDLED
LEGAL SERVICES
4. THE ORIGINAL COST-CUTTER: Just one lawyer
5. PURELY DO-IT-YOURSELF, WITHOUT ASSISTANCE

 Getting all parties to the negotiating table is the first, and
sometimes the most challenging, task for the mediator or
negotiator
 The same approaches to solving problems will not work.
You know this, because you’ve already tried the tools in
your own tool kit. If you got along, you wouldn’t need a
mediator or negotiator.
 If you propose a collaborative divorce or mediated
divorce, the mediator or attorney will be happy to contact
your spouse and send information

 Divorce is very serious, with long term
consequences for you and every member of
your family
 The same solution does not fit everyone
 Choose carefully depending on your
circumstances, paying special heed to your
need for directive advice and your need for
help balancing power
 In collaborative or mediated cases, your
attorney or mediator can help with
convening
 For more information about mediation or
conflict transformation in general, please
see www .xanskinner.com
 Thank you for your time!
A presentation by
Just Mediation, LLC
“Helping People Tackle Problems
Instead of Each Other”
WHAT ARE MY
DIVORCE OPTIONS?
IN CONCLUSION:

What Are My Divorce Options?

Recommended

Recommended

More Related Content

What's hot

What's hot (12)

Viewers also liked

Viewers also liked (7)

Similar to What Are My Divorce Options?

Similar to What Are My Divorce Options? (20)

Recently uploaded

Recently uploaded (14)

What Are My Divorce Options?