Your Choices in a Divorce

Divorce creates a variety of legal options. Perhaps as you approach a divorce you don’t know of all the options. And if you do, you perhaps don’t know how to choose among them.

Options for Divorce

In the Middle Tennessee area, there are six options. They are:

Early Stage Mediation. The parties may or may not be represented by attorneys. The discovery process is simple. There are usually no depositions or interrogatories. Both parties voluntarily produce records and information that are requested and available. The mediation process takes place with both parties present at the table. Several two-four hour meetings are part of the process. During the mediation process there is plenty of time to consider, reconsider and even experiment with, for example, parenting options. To complete the mediation at least one party will have to engage an attorney for a set fee to file a complaint, prepare the final documents and take the party to court for an approval hearing.

Collaborative Law. The parties are represented by attorneys. Often the attorneys are joined by a team of neutrals. The team are negotiation specialists. They are not necessarily experts in litigation. This team usually includes a mental health professional whose job it is to help keep the negotiations civil and productive. It often includes a child specialist to help with the development of the parenting plan. The attorneys and the team members pledge to help the parties resolve their disputes without going to court. If fact, as part of their contract, they agree to relinquish their roles in the case and allow the parties to choose professionals who are more interested in and familiar with litigation. The discovery process is simple and transparent, no depositions and no interrogatories. Usually the whole divorce process takes a few months and takes the form of several two-four hour meetings.

Pro Se. This means that the parties represent themselves and do all the work, filing for divorce and preparing court documents themselves.

Uncontested Divorce. The parties have an agreement on all issues. They need an attorney to help them file and finalize the divorce. Attorneys can only represent one party because of their ethical constraints but in nominally representing that party, an attorney can complete the process and obtain a final divorce decree.

Late Stage Caucus Mediation. This is a mediation that has most of the elements of a trial. Both parties are represented by counsel. An expensive and arduous discovery process is pursued. The process can take months, sometimes years to complete. Depositions are often taken prior to mediation, interrogatories are required. Mediation often happens in one meeting and can last over ten hours. These mediation sessions are often high pressured negotiations in which the parties never see one another and do not know what is being said about them

Litigation. This is the historical standard model for divorce. Both parties are usually represented by attorneys. The negotiations are assumed to be adversarial. Neither party trusts the other. Because of that an expensive and often acrimonious discovery process is required. Sometimes late stage mediation is a step in the process of moving toward a trial. This process can take months or years. Parties are dependent upon the schedule of judges and attorneys and cannot proceed on a schedule that is convenient to them. The dispute is resolved by a judge.

Choosing Your Path

None of these options are right for every divorcing family. Each has advantages and disadvantages. Each model can serve some couples better than the other models. Here we will help you consider which model is best for your situation.

Why Choose Early Stage Mediation? Most attorneys in Nashville do not like this model. Among the reasons they do not is that it makes them much less money and they are in less control of the process. This is among the reasons we often prefer this approach. It usually costs much less than litigation or late-stage mediation and it gives the parties control over the pace and scheduling of the process.

The parties are part of and witness to all of the negotiations. Often the process is divided into segments. Each segment may focus on a different aspect of the divorce. One session might focus on parenting time, while another might focus on the division of assets.

If you leave a mediation session and find out that the next day that you are uncomfortable with what you agreed to in the previous session, you can reconsider the issue in the next session. For example, you might try out a parenting time arrangement for a month and then return to mediation with ideas about how the parenting plan might be improved.

In Early Stage Mediation the discovery process is simple and transparent. Both parties produce whatever is asked of them from what is available. There are no depositions and no interrogatories. In Litigation and Late Stage Mediation discover it is not simple or transparent. In these other models parties can only communicate through attorneys. In Early Stage Mediation tensions between the parties may be so high that they need to use their attorneys as intermediaries or they may be able to talk directly to one another.

Whatever the level of tension, usually in Early Stage Mediation the parties sit at the table together and do not need attorneys to write expensive letters or emails to one another demanding documents or asking their clients to treat one another with respect. Usually these missives are unnecessarily acrimonious and only make things more painful and negotiations more difficult. Instead issues can be discussed openly and resolved at the negotiation table.

Attorneys often dislike Early Stage Mediation because they are accustomed to devoting a day or days to a trial and once it is over they go on to the next matter. It is often difficult for them to schedule time for a mediation session that may be just two hours. It can be frustrating to attorneys to continue returning each week to the mediation table for short sessions that move the process along but do not resolve the case in one event.

Early Stage Mediation usually creates a workable durable agreement. In contrast judge’s decisions that come through a trial or an agreement that comes after hours of pressured negotiations often do not produce agreements that stand the test of time.

Early intervention mediation creates a history of solving problems together around a table with the help of a third neutral party. In the event that you find the agreement that you once made no longer works well, it is easy to return to this mediation process and renegotiate a new agreement without expensive painful litigation.

Early Stage Mediation and Late Stage Caucus Mediation both offer a private venue where you can resolve your disputes. While litigation and court proceedings are public and records involved in a trial remain public. Mediation offers a more discrete confidential process.

While attorneys may provide a consulting role for the parties, the divorce complaint can be filed before, during or after the mediation is complete by one attorney. That attorney may finalize the court document and take their party for an approval hearing. The other party may take the court document to another attorney for final consideration before the approval hearing. It is important that these consulting attorneys support mediation. You can find a list of mediation supportive attorneys on our website at themediationgrouptenn.com

Why Choose Collaborative Law?

Collaborative Law has all the advantages of Early Stage Mediation. The important distinction is that each party has an attorney present at all negotiations. It is a team effort. The collaborative process offers a team of professionals who specialize in negotiating agreements. These professionals are not necessarily experts in litigation. If the parties later choose to opt out of the collaborative process, the team agrees to limit their service to negotiations and to relinquish their professional roles and to allow the parties to employ professionals who may be more familiar with and interested in litigation. The process occurs in a more confidential atmosphere. The parties are present at all negotiations (though they may not be present at team organizing meetings or in individual meetings with one party and their attorney or one party and a team neutral).The discovery process, like early stage mediation is transparent and simple. The process is usually divided into segments. There is no need for attorneys to write nasty letters demanding documents or telling one another to make their clients behave. All complaints are dealt with in a session and the parties are part of the conversation.

There are ways that Collaborative Law is similar to Early Stage Mediation. There are ways in which it differs. In Collaborative Law each party always has their own attorney and the attorney is present at all negotiations. This may not be true in Early Stage Mediation.

In Early Stage Mediation there is usually no mental health professional present to help the parties communicate constructively. Consequently in Early Stage Mediation the negotiations can sometimes get derailed by the natural emotional baggage that was part of the unresolved conflicts in the marriage. This can slow down the process and make it much more expensive.

While neutral experts can be used in early stage mediations, it is expected that they will be a part of the collaborative law team. A financial neutral is especially helpful in guiding the parties through issues like alimony, division of retirement accounts, and distribution of assets. If there are parenting disagreements, a single neutral child specialist can help parents focus on their children’s best interests.

In Collaborative Law it is clear from the outset that the goal is to divorce with the least amount of emotional pain and to find resolutions that work best for the whole family. Collaborative Law is not about winning and losing. It is about bringing about a healthy peace. It is about creating a legacy of cooperation between the parties.

While it can be more expensive than Early Stage Mediation, it can also be less expensive. Certainly Collaborative Law is almost always less expensive than Late Stage Mediation and or Litigation.

Why Choose Pro Se?

Why choose for both parties to represent themselves? The answer is money. There is nothing cheaper. And we are happy to announce that the Tennessee Supreme Court in 2011 approved the use of standard Pro Se forms in a divorce, thus making it much easier for parties to manage the difficult bureaucracy that is part of getting a divorce. See www.Tn.Courts.com/forms.

When you have no children, no alimony to pay and few assets to divide, this is the way to go.

However, the more involved your divorce the more you will benefit from consultation and representation from a professional mediator/attorney.

Why Choose to File an Uncontested Divorce?

The answer is the same as the answer for why choose a Pro Se divorce. The only difference is that you and your spouse have and would prefer an attorney to help with the paperwork and to be sure that the divorce becomes final.

Why Choose Late Stage Caucus Mediation?

Late Stage Mediation contains most of the elements of Litigation. This is the type of mediation preferred by most of Nashville’s prominent divorce attorneys. They prepare for mediation just as they would a trial. They prepare interrogatories which often request items already in the clients’ possession or knowledge intended to embarrass and humiliate the other side. The questions often require discovery and writing letters back and forth to the other attorney demanding this or that. They conduct depositions that attempt to intimidate the other side into settling before a trial.

When the parties finally come to mediation, as the last step before trial, each party is given a separate room. You will stay in this room the whole day while the mediator shuttles back and forth. The goal is to settle the case in this one day of mediation and come out with a final signed agreement.

The mediator will argue for you with the other side without you being present. The mediator will be free to empathize with the other side without you hearing what is said about you. This allows the mediator more latitude in helping the negotiations move forward. As the courtroom empowers the judge and the attorneys at the expense of the clients, caucus mediation empowers the mediator and the attorneys, not the parties.

Often caucus mediations can last all day and into the evening. As the parties tire, they are willing to make concessions simply to get the mediation over. Sometimes the next day the parties regret the decision they made in the mediation. They may spend much of their future trying to undo the agreement made at this mediation. Consequently the agreements often do not stand the test of time. Both parties often feel as if they were forced into agreements they have not had time to consider.

Often in this form of mediation attorneys and mediators reference the law and the judge as if your agreement can only adhere strictly to legal guidance like child support guidelines or the judge’s preferences even though the parties have chosen mediation over a judge and courtroom. Mediation is a negotiation of a contract and you can create agreements that give more child support or a parenting schedule that does not follow the judge’s standard decrees.

In mediation you should not be pressured into an agreement that is not healthy for you and your family.

Sorry, we digress. If you haven’t by now figured it out that we are not a fan of Late Stage Caucus Mediation, you have by now.

There are reasons to choose Late Stage Caucus Mediation. If you expect that this dispute will likely end up in court, then preparing for a trial is the same as preparing for Late Stage Caucus Mediation. And this mediation may help and often does help avoid a trial.

If you want to be represented by a certain attorney and this is the way that attorney practices, then you want to be sure you get them working inside the process they know best.

If there are charges of intimidation or abuse or charges of fraud or hiding or misuse of joint assets, then you need to use a rigorous thorough discovery process that is part of Late Stage Caucus Mediation.

If fault is at issue and someone is trying to place the blame of the divorce on one or the other party, then a mediated settlement that keeps the family business private might be the best resolution.

Why Choose Litigation?

It should be clear that our definitions do not favor litigation. However, there are times when litigation is your best option. When this happens it is because of a confluence of a set of tragic circumstances.

You should litigate if you believe your divorcing partner is mentally impaired or if addictions are involved. Often people who suffer from addictions or some form of mental impairment cannot process information well and consequently cannot recognize a fair offer when it is presented to them. In such circumstances only litigation will end the dispute.

People who suffer from abuse or who claim to be the victim of abuse are also poor candidates for mediation or collaborative law. Those who have been abused in their marriage will have trouble sitting at the same table and discussing their future with the person who abused them. It is difficult to trust a process that includes their abusive spouse. Those who claim to have been abused, when in fact they have not also have trouble seeing mediation or collaborative law as fair process. They tend to always see themselves in the role of the victim. Such people have difficulty trusting other people or trusting a process. They often will only accept a judge’s decision and even then, they may not accept that but at least the rest of the world will.

If you or your divorcing partner has employed an attorney that favors litigation, then you are unlikely to negotiate a settlement with an attorney who prefers to perpetuate conflict and who is paid more if conflict continues.

If you believe your side is the right side and you want a forum that has the potential of giving you justice, you need to litigate. If you want a place to hold your spouse accountable for what they have done to you in the marriage, then the courtroom is your preferred destination. If you cannot be in the same room with your spouse and sit across the table, negotiate and problem-solve together, you should litigate. If you need an attorney to fight for you, then the court process of litigation is best since it is inherently an adversarial process.

If you don’t feel you can trust any negotiated agreement that your spouse is a part of or if you don’t think you can decide what would be fair to you, then you should let the judge decide.

In addition to wanting an attorney who will fight for you and protect your interests, you may wish to have your own set of experts, e.g., psychologists, appraisers, accountants, etc.

If custody is at issue, the court may appoint an attorney called a guardian ad litem to represent your children’s interests. In cases where there is a great deal of dissension it may be helpful for your children to have their own attorney.

Litigation offers a well-known path. It gives you the ability to compel the other party and third parties to provide information. It creates a forum where there is an ultimate legal authority who can enforce compliance.

If litigation appears to be your best option, in general we suggest that you set a court date as soon as possible in order to reduce the cost of the discovery process and to help you get the divorce behind you so you can go on with your life. Finding a court date can be difficult.

After reading the description of the various choices for divorce available to you, if you are not clear about which path is best for you, you might want to fill out the following questionnaire. It can help you clarify your choices.

Litigation? Early Stage Mediation? Collaborative Law?

This questionnaire is a tool to help you decide what path to take if you are considering divorce. There are several options described above. They are Conventional Litigation, Pro Se Divorce, Uncontested Divorce, Early Stage Mediation, Late Stage Mediation or Collaborative Law. Above you can find definitions of each of these options. If you are taking this test, we assume you are not choosing the Pro Se option. The overlap between late stage mediation and litigation is so complete that we omitted questions referring to late stage mediation. Assuming you have some general idea what these three options are, these questions and your answers should help you choose the path most suitable to your circumstances.

Yes No

____ ____ 1. I'm concerned about my children and I want them to have two parents who

can cooperate in parenting time.

____ ____ 2. I believe the court system will reward me with what I deserve.

____ ____ 3. I need a strong attorney to help me win.

____ ____ 4. I want to protect my children from their mother/father.

____ ____ 5. I hope my co-parent is satisfied with the reduction that comes from this divorce.

____ ____ 6. There has been psychological or physical abuse in this marriage.

____ ____ 7. We both want a respectful divorce process.

____ ____ 8. I want to hold him/her accountable for his/her past behavior.

____ ____ 9. We basically trust each other.

____ ____ 10. I want him/her to see how wrong he/she is.

____ ____ 11. Both parties are employed.

____ ____ 12. I am not able to be in the same room with my husband/wife.

____ ____ 13. Did you consult a therapist as a couple prior to divorce?

____ ____ 14. I want people to know how badly I was treated in my marriage.

____ ____ 15. I am able to sit across the table from my husband/wife and negotiate my future.

____ ____ 16. I believe I am entitled to more of the joint assets than my husband/wife.

____ ____ 17. My spouse is a reasonable person.

____ ____ 18. My friends and family want me to get an attorney who will fight for me and protect

me.

____ ____ 19. I believe my husband/wife is mentally unstable.

____ ____ 20. I can think for myself and I want to define my own future. I don’t need the law to

tell me what’s right.

____ ____ 21. There are addiction issues in this marriage.

____ ____ 22. Our assets are less than $100,000.

____ ____ 23. We have some disagreements. We don’t need attorneys, but we need to talk this

out with a neutral third party.

____ ____ 24. We both agree on what we want for the children.

____ ____ 25. Money that we spend on professional fees is a large concern.

____ ____ 26. We both agree that division of property should be simple.

____ ____ 27. I am able to sit at the table and negotiate with my spouse but I would be

more comfortable doing with the help of a mental health professional.

____ ____ 28. Both parties are employed.

____ ____ 29. I have some trouble trusting my spouse by I want to try mediation first.

____ ____ 30. Alimony is not an issue.

____ ____ 31. I want to always have court as an option.

____ ____ 32. We already have some agreements.

____ ____ 33. There are no issues of abuse or overt intimidation in our marriage.

____ ____ 34. I do not want to go to court but I want an attorney.

____ ____ 35. Our divorce process will be complicated. The issues are so complex, (legal,

emotional and financial) that we will professional assistance.

____ ____ 36. I have a temper (or my spouse does) and I don’t want it to cause me in my

divorce. The calming presence of a mental health professional at

our negotiations would be helpful.

____ ____ 37. Our finances are complicated and one of us will have trouble understanding them

and will need financial guidance. I want this professional guide to be neutral.

____ ____ 38. Divorce is a painful thought to me. Sometimes I have trouble thinking straight

because of that and I need help.

____ ____ 39. I enjoy using a team approach to solve problems.

____ ____ 40. I want an attorney to represent me and my interests and at the same time I want a

solution that works for everybody.

____ ____ 41. I or we need help designing a parenting plan.

____ ____ 42. Our children are or may have trouble with our divorce and I want an objective

professional to help us consider what’s best for them.

The Mediation Group of Tennessee • 2809 Wimbledon Road • Nashville, TN 37215 • Phone: 615 292-6069

This site managed with Dynamic Website Technology from Mediate.com
Products and Services