What are my divorce options?

I’m Getting Divorced So, what’s next?

©2010 by Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185

A presentation by

Just Mediation, LLC“Helping People Tackle Problems Instead of Each Other”

Divorce Options

What are my options?And how do I choose?

©Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185

Key Considerations

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

© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185

Key Considerations

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?


The Options:A Quick overview (with more detail later)

LITIGATED DIVORCE

COLLABORATIVE DIVORCE

MEDIATOR ASSISTED DIVORCE

THE ORIGINAL COST-CUTTER (Just one lawyer)

PURELY DO-IT-YOURSELF, WITHOUT ASSISTANCE


Goals

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


Is Divorce Mediation Right For Me?

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?”


Ask not whether you will mediate …Ask when and how you want to mediate


LITIGATED DIVORCE

• Attorneys direct the show• Engage in Discovery

(interrogatories, requests for admission, depositions)

• Attorneys may not want to mediate, but court requires it

TWO ATTORNEY DIVORCE

• Prepare for trial• Settle sometime prior to

court• Attorneys direct process,

negotiate, and decide when to call in a mediator

MEDIATOR FACILITATED

DIVORCE

• Agree to fairness• Agree to full disclosure• Use unbundled legal

services to assist parties

One Size Does Not Fit All!

Some cases require much more assistance than others with either legal advice, judicial process, or both

How can I tell in advance how much assistance I will need from the court system?



0 0.5 1 1.5 2 2.5 3 3.5 4 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

Pow

er B

ala

nce

d / U

mbala

nce

d


0 0.5 1 1.5 2 2.5 3 3.5 4 4.5

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

The Power/Information GridWhere do I fall?


Power balanced

Power unbalanced

Aware of options Unaware of options

A Suggested Analysis


•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 unbalancedPower 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

Balancing of PowerIf 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.


Divorce Mediation Utilizing Attorney and Legal Process



themselves).


-One spouse is secretive or hoards information, is manipulative, physically or



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.


Collaborative Divorce



themselves).


One spouse is secretive or hoards information, is manipulative, physically or



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. .

.


Mediator Facilitated Divorce using unbundled legal services and other professional services



themselves).


One spouse is secretive or hoards information, is manipulative, physically or emotionally abusive, actively attempts to

disempower other spouse and prevent equal access to resources or information

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.


Litigated Divorce(with trial)

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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185

Litigated Divorce(without trial)

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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185

Collaborative Divorce

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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185

Mediator With Unbundled Services

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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185

Just One Lawyer

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: $1,500 - $3,000 per side, unless the process falls apart© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185

DIYD: Do It Yourself Divorce

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)



How does each meet key goals?

Fairness Custom Fit Comprehensive Practical Cost Effective

FAIRNESS


LITIGATION COLLABORATIVE UNREPRESENTED

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

CUSTOM FIT

© 2010 by Just Mediation, LLC, for more information: www.JustMediationLLC.com 803-414-0185


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

COMPREHENSIVENESS



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.

PRACTICAL



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

COST EFFECTIVENESS



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.

So Again, the Options:Which seems right for you?

1. LITIGATED DIVORCE 1. FULLY LITIGATED, ADVERSARIAL DIVORCE WITH TEMPORARY AND

FINAL COURT HEARINGS, OR2. FULLY LITIGATED, ADVERSARIAL PROCESS THAT SETTLES AHEAD OF

COURT DATE

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© Just Mediation, LLC, 2010. For more information: www.JustMediationLLC.com 803-414-0185

Collaborative or Mediated Divorce:How Do I Talk To My Spouse About It?

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


Conclusion

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:

Documents

What are my divorce options?