While it might be an over-simplification, if you are considering divorce, you should know there is a way to classify the process into one of 4 categories, as explained below. If you are considering divorce, you should know that the power is in your hands as to which path you choose and the most difficult path might be the one that seems to make the most sense intellectually. That being said, we at WALDING LLC think it is in your best interest to be as educated about the process as possible.
Marriage is an emotional, religious and legal relationship in which two people choose that another person to be endowed with certain respective rights recognized legally by a marriage license granted by the state in which the couple is married. Divorce is the legal effect of the severance of the legal rights acquired by the parties to the marriage relationship. Traditionally, divorce only addresses the legal aspect of a relationship encompassing many other aspects of a person's being. However, as every divorceing spouse can attest, there are numerous factors and consequences to divorce besides the "legal" divorce - the emotional, financial, familial, parental, psychological and social.
To be clear, divorce is never positive for anyone - the spouses, the children of divorce or the family of those that have divorced - but it can be minimally damaging if the spouses decide so. You probably have friends that have expressed divorce can only be an end sum game in which only you or your spouse "win". Divorce is never a "win" one way or the other. It is the death of a relationship and the inevitable transition to another type of relationship for the respective former spouses. Also, it is one of the few legal arenas in which only ONE party can determine the outcome. To be clear, as long as ONE spouse wants to get a divorce, you WILL inevitably divorce, despite how much or how badly the other spouse does not want a divorce. So, if one spouse is determined to divorce, how can both spouses minimize the damage for each other, their children, family and friends while maintaining control of the process?
By way of background, there are really FOUR (4) primary categories of divorce, which might take several shapes and form, whether beginning as one and ending up as another of these categories:
- KITCHEN TABLE: You and your [soon to be former] spouse can sit together and decide what is "fair" in terms of property and other rights. This is most common where no kids are involved. However, if you can reach a "kitchen table" settlement with kids, it's likely that the social and emotional outcome for your kids is significantly improved. If you and your [soon to be former] spouse can work together on issues now, it is highly likely that you will work cooperatively together in a few months or years on other issues.
You will only need an attorney to put your agreement in writing and file the legal paperwork to make it happen legally. The two of you might be the gold standard of excelling at divorce. That being said, no medals are typically awarded!
- MEDIATED DIVORCE: So, you guys had a few issues to resolve in settling your divorce? No worries - you fit in the majority of divorcing spouses. Mediated divorces involve engaging a third party mediator to help resolve the issues that the two of you can not resolve - whether money, time with children or other issues. The mediator is an attorney that tries to serve as a neutral in which he or she does not represent either of the spouses but tries to make the most positive outcome for both spouses.
The problem in Alabama with this choice is the attorney that serves as the mediator can not technically represent both spouses in filing paper/pleadings with the court in order to finalize the divorce. So, spouses might have to engage two attorneys in this process to ensure this process is neutral pursuant to Alabama law.
- COLLABORATIVE DIVORCE: Each party engages independent counsel and typically engages other professionals - such as coaches (mental health professionals), child specialists and financial advisors, as necessary. These professionals form a team that are a confidential group moving forward with you in the process of deciding the financial, emotional and child concerns in divorce. THE PROFESSIONALS IN THE COLLABORATIVE MODEL ARE SO VESTED IN YOUR SUCCESS, THEY REFUSE TO BE INVOLVED IN ANY LITIGATION RELATED TO YOUR DIVORCE!
Collaborative divorce requires informed consent on the part of each spouse in which any facts or information relative to the divorce shall be disclosed in the course of negotiating the collaborative divorce. This may include financial information, asset disclosure and relationships outside the marriage. Informed consent is the basis for the settlement that parties reach in a collaborative process and although disclosing embarrassing facts to one's spouse may seem contrary to the divorce process, it may actually move the process in a positive motion forward.
- ADVERSARIAL DIVORCE: This is where things typically get nasty and the divorcing spouses may lose the ability to make decisions related to the process and the control and direction of the process land in the laps of their attorneys. This adversarial construct may take place in court our outside of court with the attorneys typically leading the process - whether through negotiation or in front of the court or a mixture of both. This process can be the most expensive for those involved and provides the least amount of input for the spouses. Once the process moves to the courts, the spouses may feel like the process has taken on a life of its own and they are not in control.
Divorce is destructive to emotions and requires a mourning process regarding the loss of the relationship. At WALDING LLC, we only represent spouses in Collaborative Divorce because we believe it presents the most positive opportunity for spouses the utmost disclosure and certainty on the part of both parties.
If you are interested in proceeding down the track of Collaborative Divorce, please feel free to contact us at WALDING LLC.