Types of Virginia Divorce: Litigation, Negotiation, Mediation, Collaboration Pt 1

One of the problems with divorce is that there are so few people out there who can actually help you find the actual best way forward for you in your unique case.

Mediators preach mediation. Lawyers litigate. Those two are very narrow, in terms of options, don’t you think? It can feel really hard to get a clear and unbiased idea of what any of these things even entail before you’ve already jumped in headfirst and then, sink or swim, you try to reach a resolution because you’re so invested in the process itself.

It’s hard to know what you don’t know, and even harder to ask the questions you’ve never before articulated using vocabulary that you’re not entirely confident of. I find that people say the same things – they have no money, they want to resolve things amicably, their main concern is the children – but that doesn’t necessarily mean that the same avenue is the right road for them all to go down. In fact, I think it’s almost a guarantee that what’s good for one family is not what’ll be good for the next.

So, to really make an informed decision about your divorce and how you want it to move forward, you have to understand the types of divorce and the advantages and disadvantages associated with each. Right? That’s a good place to start, anyway.

In this two part article, we’re going to explore more about each ‘type’ of divorce, including the advantages and disadvantages associated with the process.

Now, one thing that I do think is important to clarify… I say “types” of divorce, and that sort of implies that each is a separate and distinct process, which really isn’t true.

In Virginia, there are two ways – and two ways only – to get divorced. You either sign a separation agreement, or you go to court and litigate. Ultimately, for a judge to sign your final divorce decree and formally divorce you, you’ll have to divide between the two of you ALL the assets, liabilities, and responsibilities in your marriage.

Either the judge does it – which means that you’ve offered evidence, witnesses, and testimony in court – or you do it yourself, through mediation, negotiation, collaboration, or without attorneys entirely.

Advantages of a litigated divorce

There are a couple of advantages that I can think of when it comes to a litigated divorce. For one thing, you and your husband won’t have to agree. For some couples, actually coming together and negotiating – which requires a certain amount of give and take – is unrealistic.

Letting the judge decide takes the power out of both of your hands and lets someone else make those calls. (Also, probably one of the main disadvantages as well, if we’re being honest.)

It also gives you access to the courts, which means that you have more control over the speed and options available to you. You can file show causes, if he’s not following through, or motions to compel, if he’s ignoring deadlines or not providing material he’s required to provide. You can schedule a pendente lite hearing, if you need temporary child and spousal support, too.

Disadvantages of a litigated divorce

There are a lot of disadvantages, too – specifically, you’ll have much less control over the outcome, you won’t be able to structure your final order as creatively as you would if you negotiated yourselves, it’s time consuming and very expensive to litigate, and, generally speaking, people who litigate indicate less happiness with the process.

Separation Agreement

The only other way to get divorced is by negotiating a separation agreement. This is really where we come into different ‘types’ of divorce.

While there’s only one way to get a litigated divorce (through the courts, by following the specific process), there are a number of ways to get separation agreements in place.

Most attorneys will tell you about negotiating agreements through counsel, and most mediators will tell you about the mediated process. But there’s also a third option – collaborative divorce – and, sometimes, even a fourth, in that you could technically do it yourself, without the help of a lawyer or mediator.

Negotiating a Separation Agreement

In a traditional negotiation, both parties hire attorneys. Any old family law attorney will do; we all negotiate agreements. I mean, of course, it DOES matter; some of us are better than others, or more creative, or more successful in negotiations – I just mean that you don’t have to pick a ‘specialist’ or someone with a specific classification (as opposed to a mediator or a collaboratively trained attorney).

A negotiation process is back and forth. Someone makes a first offer, and the next party counter offers – back and forth until an agreement is reached. That doesn’t mean it’s easy; in fact, it’s almost never easy. But there are options in the sense that you and your husband are only limited to what you can agree to; it’s not a question of, say, dividing everything 50/50 and sending you on your way (as is often the case in court). It’s more a question of both of you choosing which 50% means the most or has the most value to you.
Sometimes, we negotiate via letters or phone calls (or faxes even, in the olden days – and sometimes older lawyers will still do this!) but we also meet in person for four way or judicial settlement conferences.

Mediated Divorce

Going through mediation means you hire a mediator instead of a lawyer. In some cases, mediators can also be lawyers, but they don’t have to be. Technically, mediator training is different than being licensed as an attorney. So, it’s best to know and it’s best to be careful.

Generally, we tell our clients that it’s best to go into mediation with an idea of what you might be entitled to receive. If you don’t know, you’re really not ready for mediation. In a best case scenario, you’d meet with an attorney before mediation – and again after, before you sign anything – to make sure that you know what a ‘good’ agreement for you might look like, and to have a pre-established idea of acceptable outcomes for you.

Mediation can save money, compared to litigated divorce. A mediator is shared between the parties (rather than each party hiring his or her own attorney) – but there’s a big catch there. The mediator doesn’t represent you, and isn’t there to help push you towards a good agreement for you. The mediator is there to help you reach an agreement, and that’s it.

Mediation is usually more like a four way settlement conference, in terms of how it feels. In a mediated divorce, you’ll meet, usually in person, with your husband and your mediator, and you’ll go round and round until you come up with an agreement that you will both sign.

There are lots of advantages and disadvantages here, some of which we’ve already touched on. But as far as it being an option for negotiating a separation agreement, it may be something worth considering.

On Friday, we’ll talk more about the two remaining options: collaborative divorce, and do it yourself divorce.

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