Different approaches to divorce

Many people advise their friends and relatives when they are facing divorce to “go get an attorney”.  This is understandable as often the emotions are running high, dreams and hopes have been dashed, anxiety is high about what will happen to the children and finances, trust and communication may be at an all time low, etc.  However, often it is sensible to do some research before rushing off to “have your day in Court”.
While there are many attorneys who will advise their clients on the different approaches to divorce (mediation, collaboration, cooperative, litigation, consultation v representation) and help them to work through their options and the costs and benefits of each (they have an ethical obligation to do so), unfortunately, there are attorneys who do not talk about options other than litigation and thus sell the potential client on a retained representation for litigation.  While there may be some situations that may only be resolved through a litigation approach, the vast majority of cases are not settled in the court room because the parties agree a settlement without the judge being involved.
Attorneys can be hired in two different ways.  They can represent you in your matter, or you can consult with them.  If they are representing you, they are managing your case and have a responsibility to you to help you achieve your objectives.  You will usually need to pay them a retainer if they are representing you.  If you are consulting with them, you are seeking their advice, but you are managing your own case.
Litigation may have benefits, depending on your situation. Your  attorney will take control of your case to gather all the information to make sure that your spouse is not hiding or misrepresenting anything, advise you on what you can expect as an outcome, help you to understand what is going on in the legal process, and represent you to your spouse, his/her attorney, and the Court to try to achieve your objectives in the divorce.  If there is abuse, a large power imbalance, complicated issues, lack of communication and trust, then often litigation is the only way to get the divorce finalized.
Litigation also has costs.  The very nature of the litigation process, the attorney’s ethical and professional  responsibilities to you as the client and to the court can increase costs rapidly at the beginning of the case in order to collect all the information that both attorneys need to get the case started.  If one of the attorneys (or their client) wants to be difficult (like filing a restraining order with little basis), this can escalate the conflict and the costs even more.  The very nature of the legal adversarial process, while designed to resolve conflicts based on law (and some say to find the truth and justice), can damage the relationship between the parents so much that it makes it very difficult to co-parent effectively.
For many people, however, they have made a decision to divorce, have put a high value on minimizing the damage to the children in the short and long terms, and wish to not damage their relationship further through the divorce process. Even though there may be some trust and communication issues, with some help they can work through their issues and come up with an agreement that works for them and their family.  They can be non-adversarial and try to reach an agreement that is satisfactory to both of them, rather than an “I Win, You Lose” result.  Just having this mindset when approaching divorce can save tens of thousands of dollars in professional fees.
Many people find that starting with a mediation process, in which they work with a neutral mediator and each party has an attorney with whom they are consulting, can be a highly effective and a relative low cost way to reach an agreement on even very complicated situations. During mediation, the mediator helps the parties to find their own solutions that will work for them.  Their attorneys may (but not necessarily) be present in person or by phone.   At minimum, the attorneys should be consulted close to the beginning of the case after the financial information has been exchanged between the parties, and closer to the end of the process when agreements are being discussed, but not yet finalized.  They should also review the Memorandum of Understanding (your divorce agreement) to make sure that it is written to reflect your understanding of the agreement.  (Note that this type of mediation is often quite different than a settlement conference, in which an attorney-mediator or retired judge will, in effect, evaluate your case and tell you what a judge would say if it went to court.)
If mediation is not successful in reaching a full agreement, then the parties can increase the involvement of attorneys through collaborative, cooperative or litigation models.

If more involvement of the attorneys is needed by the clients (who perhaps need more support due to a power imbalance or lack of trust), they can enter into a collaborative agreement with their attorneys. Collaborative divorce involves the attorneys agreeing with their clients that they will not represent them in Court, and will work in a collaborative and non adversarial way with the other party and their attorney.  Cooperative divorce is similar except that the attorneys have not agreed that they cannot represent their clients in court, but will try to work in a cooperative way to reach an agreement.  You can find out more about collaborative divorce at www.denvercollaborativedivorce.org.

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