If you’re wondering what kind of divorce is best for you, you’re not alone. If you Google “divorce,” you’ll be inundated with information about divorce. You see paid advertisements that say things like, “Divorce: $199” and “uncontested divorce in Virginia.” If you read down a little bit further, before you know it, you’ll see articles advocating collaborative divorce, whatever that is, and mediation, too. Before you know it, you’re confused and wondering why someone just can’t tell you what you should do.
The truth is that deciding what kind of divorce you want to pursue is incredibly personal, and you’ll have to make the decision for yourself. Still, I can help you by putting the information you need to help you make that decision all in one place, which should definitely help.
When it comes down to it, there are really just three ways you can get divorced: a judge can do it for you, you and your husband can negotiate a written and signed separation agreement, or you can combine these two approaches so that you agree on some things and a judge decides the rest. Ultimately, the end result is the same, a final decree is entered, and it’s based upon either whatever the judge ordered or whatever the two of you agreed on.
However, there are a number of different ways you can get to the end result, and that’s where the different “types” of divorce come in. They aren’t really completely different types of divorce; they’re just different means to reach the same end.
A litigated divorce is achieved in the courtroom, and the ultimate distribution of property and assets is done by the judge. Litigated divorces are typically considered last resorts for couples who absolutely cannot reach an agreement. When you file a complaint in your local circuit court without reaching an agreement first, you start the litigated process. Never fear, though: if things start to run a little more smoothly with your soon-to-be ex later on down the road (like after he gets his first bill from his attorney), you can always switch your divorce over from litigated to uncontested, and negotiate your own separation agreement.
Any other kind of divorce is an attempt to reach a separation agreement and stay out of court. Typically, when you reach an agreement, you will be able to achieve your divorce in the cheapest, quickest, easiest manner possible. This is what is called an uncontested divorce, and that just means that all of the outstanding issues (equitable distribution, support, custody, and visitation) have already been settled—there’s nothing left to fight about, or contest.
In a negotiated divorce, you and your husband negotiate a separation agreement either on your own or with the help of your own separately retained attorneys. In some cases, only one side has an attorney, but you should know (especially if your husband has an attorney and you do not) that his attorney does not represent you and can’t give you any legal advice.
In a collaborative divorce, you and your husband hire collaboratively-trained attorneys to help you reach your separation agreement. In addition to your attorneys, you will also each have your own divorce coach (to help you navigate emotionally through the process), and together you’ll retain a child specialist, if you have children, and a financial specialist. The child and financial specialists will represent both of you, and will help you come to an agreement about what is best for your family as a whole, and not just one or the other of you.
A collaborative divorce also includes an agreement not to go to court, and to provide all of your information to the other side. This process is much less adversarial, and has an extremely high rate of success. At our firm, both Sheera Herrell and Jeffrey Tarkington are trained in collaborative divorce.
In a mediated divorce, you meet with a mediator (who may or may not be an attorney) and he or she helps you and your husband reach an agreement. Whether or not your mediator is also qualified as an attorney, it is not his or her job to help you reach an agreement that is beneficial to you personally. The mediator doesn’t represent either of you, and is primarily concerned with helping the two of you reach an agreement.
If you want to use a mediator to help you and your husband reach an agreement, it’s a good idea to meet with an attorney first before you go, just to get an idea of what you could expect to receive in court. You should go into the meeting knowing ahead of time what you expect to receive out of your agreement, and then refuse to agree to anything less. After your meeting, it’s also not a bad idea to take the finished agreement back to the attorney to review before you sign. You never can be too careful!
Remember that, once you sign an agreement, there is no going back. If your husband doesn’t agree that it needs to be changed, it would be incredibly difficult (if not impossible) to get the court to change it.