Saturday, December 22, 2012

Process Options for Resolving Divorces

If you are facing the start up of a divorce, one of the first decisions to be made is which legal process your case will use.  When you are meeting with an attorney, you should be informed about at least 4 different processes.  So that you are better prepared for the initial meeting, here's a preview of what you should find out from the attorney.  If you don't hear about all these approaches, you should probably meet with another attorney to make sure you get a balanced view of your choices.

1.  Do it Yourself, or the Kitchen Table Approach.  In this process, you and your spouse work together informally and come to agreements on what to do.  It's certainly cheaper (at least initially) to handle things yourself.  In the right case, it can be less stressful if both parties are cooperative.  Usually, the right case is one where there's nothing in dispute and nothing to agree on. Those situations are very rare.

There are several potential problems, however, such as:
  • you may not have all the information you need, 
  • you may be uninformed about some aspects of the law or facts, 
  • you may be misinformed (lied to) about some aspects, 
  • you may have not anticipated some  important issues, and
  • you may not have the proper paperwork.  
Even though it is getting easier to find divorce forms online, they may not be the right forms for you.  Sometimes forms and apps and books are prepared based on some other state's laws (often that's California) and that can really mess up a Texas divorce.  In addition, some situations can become very stressful, especially when one spouse may pressure or intimidate the other spouse, which happens frequently when a spouse has been controlling for a while already. 

2.  Mediation.  You can do mediation with or without an attorney.  Doing it without an attorney can be very risky.  A good mediator can help the parties come to an agreement, but the agreement may not be in your or your child's best interest.  A controlling spouse can sometimes get the other spouse to take much lower (or much higher) child support than a court would award, for example, or might get a spouse to give up too much property.

In North Texas, most mediations take place after the divorce is filed and with attorneys representing both parties and attending the mediation.  Unfortunately, that type of mediation (with attorneys) usually takes place just before trial, after one or more court hearings and after discovery (the formal exchange of documents and information) has been completed.  Mediation usually works and is a great process.  It's just that the timing is unfortunate.

3.  Litigation.  This is the standard default process to use.  Some attorneys are not trained in Collaborative Law and don't want to try it, so they ignore it and go straight to litigation.

The litigation process most often starts with filing a petition for divorce, getting a restraining order and having a temporary hearing right away to set up temporary  orders governing custody, support, visitation, use of the house and other property and how the bills will be paid.

After that, there is a process for exchanging information, called "Discovery", that usually includes written questions, requests for documents and electronic information, requests to disclose some basic information and sometimes depositions.  Discovery is usually very time-consuming and expensive.

There can also be various hearings while the divorce is pending.  In contested cases, the hearings may be to enforce orders or to change the orders.

The Court usually sets up a scheduling order for the various steps that are followed leading to the trial.  Usually mediation is required, but it's often shortly before trial.  Most cases, even in litigation, will settle before trial, but a lot of work is done before the settlement is worked out, and that means it's very expensive.  In Tarrant County, a trial is usually set about a year or more after the case is filed.

4.  Collaborative Law.  This has become a great alternative for resolving cases.  The parties each hire their own attorney and the attorneys usually bring in a neutral mental health professional and a neutral financial professional.  The attorneys and other professionals must be trained in Collaborative Law.  Many attorneys are not trained, so check with the attorneys before you hire one.

The process involves a series of meetings that take place after the parties sign an agreement to not go to court.  If the process breaks down, the attorneys and other professionals must withdraw and the parties must hire new counsel.  As strange as it may seem, that is one of the main reasons the process almost always works -- everyone loses if the parties can't come to an agreement.  The attorneys and professionals lose business and the parties are out the fees they have already paid, along with new fees that will be required.

For more information about how the Collaborative process works, please look at some other articles in this blog.

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