Alternatives to Traditional Litigation in Divorce
If you and your spouse have come to the decision to file for divorce, you are in the same boat with approximately 40%-50% of other marriages. Traditionally, it is typically thought that the first step of action is to “lawyer up” and start the litigation process. Not only is this a LONG process, but it can be quite EXPENSIVE. In addition, if details of your marital settlement agreement (MSA) can’t be worked out through offers from you or your spouse to the other and/or through mediation, you go to court and let the judge decide. Court is the most expensive result, and the fate of both party’s future and their children is exclusively in the hands of the judge (VERY subjective), so this is never a route that a couple wants to take if it can be avoided.
THERE ARE MORE PEACEFUL AND LESS EXPENSIVE APPROACHES TO DIVORCE
One of my financial planning clients recently shared with me:
When I went through my divorce, traditional litigation was all I knew about. My husband and I agreed on most of the details of our divorce, and we wasted so much time and MONEY, and the emotional stress as a result was really unnecessary. Had we known there was a way for us to all get together and hash out the few things we didn’t know how to handle, with a Certified Divorce Financial Analyst® to assist us to make the best financial decisions for our family (something else I just didn’t know about), it would have made our divorce so much smoother and productive for both of us.
Alternative Dispute Resolutions (ADRs)
Alternative Dispute Resolutions are just that; alternatives to traditional litigation. Some ADR’s to consider in South Carolina are:
Mediation
In the mediation process, the couple works with a NEUTRAL third party (typically an attorney) in creating the marital settlement agreement. Mediation for amicable couples can significantly save time and money. Remember that with mediation, you are not getting INDIVIDUAL legal representation or financial assistance and negotiation is a must. This is required in SC for all divorcing couples. If you already have attorneys and are not working with your spouse and a mediator alone, the attorneys handle the mediation with you and a mediator; the spouse is usually in another room with their attorney.
Collaborative Divorce
In Collaborative Divorce, each party hires his/her own attorney who has been trained in the Collaborative Divorce process, as well as a team of other professionals, usually consisting of a financial neutral, therapist and/or divorce coach. Information is shared freely with all parties and the team works together to find solutions that are best for the family. If there are no major hurdles, this could save a great deal of money in the long run. However, if the couple cannot come to an agreement and want to go to court later, they will be breaking the agreement and will have to hire new attorneys to represent them moving forward.
Cooperative Divorce
Some litigation attorneys have begun to practice cooperative law. In these cases, the couple and their attorneys agree to refrain from filing litigation and going to court. Information is voluntarily shared, and all agree to negotiate in good faith, keeping the family’s best interest in mind. If a settlement cannot be reached through negotiations, the same attorneys can continue to represent the individual through the traditional litigation process.
Litigation
Although ADR’s may be a more peaceful and less expensive approach to divorce, in some cases, litigation IS the best solution, especially in cases of abuse or neglect. The pro of litigation is that you do not typically have to deal with a spouses’ drama yourself, but it can take a toll on children, even more so than it already has. In theory, you get the info you need to either prepare for mediation or make an offer to your spouse. As you know, you cannot control your spouse…or their attorney for that matter! Sometimes information is withheld by the other party until the last minute. There is lots of posturing and strategy going on between the lines… and the legal bills continue to accumulate until a settlement is reached or you go to trial! However, this may be the best option if an abusive or narcissistic spouse is involved or if the couple just cannot work together.
Finally, you can always do it yourself, but it is not recommended!!!
DIY Divorce
Some couples who have a simple divorce with few assets to split, and possibly no child custody and/or spousal support issues to work out, may decide to go through the process by themselves. Filing for divorce without legal representation is called “Pro Se” and is the most inexpensive way to divorce. Keep in mind, if you decide to file by yourself, you are not getting any legal or financial advice and it is easy to make mistakes. Splitting assets in divorce is permanent; once you sign the agreement, it cannot be changed unless you can prove fraud! These couples usually end up at an attorney’s office or my office somewhere down the road with lots of mistakes in their agreement that cannot be remedied.
Whether you decide that one of these ADR’s will work best for you or go the traditional route, The Financial Knot® can assist you with your financial decisions. We can serve as a financial neutral between the two parties in a mediation, Collaborative or cooperative situation, or as a Financial Advocate for you in litigation. You are not alone; we can help!
The Financial Knot® is another business name of Independent Advisor Alliance, LLC. All investment advice is offered through Independent Advisor Alliance, LLC, a registered investment adviser.
