How to get divorced: Mediation, Collaboration, and Negotiation
There are two basic ways to get divorced: with an agreement, or in court. These days, most people get divorced with a separation agreement, because it’s cheaper, easier, and much less adversarial.
What’s a separation agreement?
A separation agreement is a legal contract that divides all the assets, liabilities, and responsibilities in a marriage between the two partners. It handles everything, from property division, to retirement accounts, to child and spousal support, and even custody arrangements. Absolutely everything that is an issue in your divorce should be divided in the separation agreement.
There are very few limits on what you can do in your separation agreement. Because it’s something you and your husband have to agree on, the two of you can talk it over (or have your attorneys talk it over) until you come to an arrangement that you’re comfortable with.
What kind of divorce will I get?
When you negotiate a separation agreement, you move forward with an uncontested, no fault divorce. Uncontested simply means that all of the outstanding issues in your marriage have been resolved through your agreement; there’s nothing left to fight about in court. No fault doesn’t necessarily mean that there is no fault, it just means that you’ve agreed not to move forward with fault based grounds. (If you do want to try to pursue fault based grounds, you’ll actually have to go to court and prove it to the judge.)
How do I get a separation agreement?
You can get a separation agreement through a number of different processes! It’s up to you to choose a process that suits your needs and concerns, so we’ll go over each in detail so that you can begin to start thinking about what you might choose to do once you’re ready to move forward with your divorce.
When you go through the negotiation process, you either hire an attorney to represent you or you negotiate with your husband yourself.
If you hire an attorney, usually what happens is that the attorney will meet with you, get an idea of what you’d like, draft up an agreement, and then send it to your husband’s attorney, or your husband directly if he is not represented by counsel. Usually, the first draft we prepare is primarily in your favor, and we do this with the expectation that we will begin to start negotiating when we hear back from your husband or his attorney regarding the first draft. We’ll talk back and forth, either in person, through letters, or on the phone, and ultimately come up with a draft that both you and your husband can accept.
Collaborative divorce is becoming more and more popular all the time, as people think up new ways to stay out of court. In a collaborative divorce, you and your husband agree to stay out of court and lay all your cards out on the table. You each hire collaboratively trained attorneys and divorce coaches (mental health professionals who help you through the process), and you share a financial expert and a child expert (if you have minor children). Together, your team of professionals will help you negotiate an agreement that is in the best interests of both husband and wife.
Collaborative divorce has an incredibly high success rate, and the people who go through collaborative divorces tend to experience the greatest level of satisfaction with the outcome of their case. Of course, because you hire so many professionals to work with you, collaborative divorce tends to be more expensive on the front end. At our firm, Sheera Herrell is collaboratively trained.
In a mediation, you and your husband meet with a mediator to figure out how to divide the assets and liabilities in your marriage. A mediator is not usually an attorney, but, regardless, it is not the mediator’s job to advise you on the law or your entitlements under it. Instead, it is the mediator’s job to help the two of you reach an agreement.
Mediation can be a cost-effective way to get divorced, but you have to be prepared. Because it isn’t the mediator’s job to give you any particular advice, you need to do your research beforehand. Know what you want, and what you’ll accept within a certain range. Meet with an attorney before you go to get an idea of your legal rights and entitlements, and meet with an attorney afterwards to review the separation agreement the mediator gives you. Don’t just sign blindly!
Whatever you decide to do, you can’t go wrong so long as you’re informed about the process. Request a free copy of one of our books, attend a seminar, or meet with an attorney for an hour to figure out what’s reasonable and what you can expect. Remember to NEVER sign anything without having it reviewed by an attorney first! For more information about collaborative divorce or to schedule an appointment with one of our attorneys, call (757) 425-5200.