Choice in Resolving Your Conflict
If you and your partner split on amicable terms, try to work out the details of your separation. It’s advisable to at least have a consultation with a lawyer to be aware of your rights and options before doing so. This is certainly the least expensive, and healthiest way to separate.
The Collaborative Process is ideal for spouses seeking an alternative to traditional, Court-based approaches to divorce and separation. It’s especially preferable for individuals who have children together and want to maintain the best possible family relationships, now and in the future. It’s for spouses who recognize that they’re the best at making decisions about family and finance, and not someone else. And it’s for people who place a high value on taking personal responsibility for handling conflicts with integrity.
This process involves:
- An impartial third party who will assist all parties in identifying and communicating their needs, wants and concerns
- A trained divorce mediator who is obligated to maintain the highest level of confidentiality and protect privileged information
- Fair and respectful consideration for all parties involved
- A focused discussion so that parties can creatively resolve the conflict
- A facilitated discussion and assistance in the development of a plan or agreement that is acceptable and fair to all
- When appropriate, and with the consent of the parties involved, other people may be included in the mediation as outside resources such as accountants, business valuators, divorce lawyers, financial planners etc.
While divorce mediation is the preferred method of resolution, some couples cannot agree. For these couples, arbitration may be an option. Divorce arbitration may be less expensive, more private, and may take less time than traditional litigation. The decision of the divorce arbitrator is binding, so couples leave the process with a final decision.
Divorce arbitrators, like mediators, come from diverse backgrounds including but not limited to: law, finance, business and psychology. An arbitrator is highly skilled and experienced as they do render final binding decisions. Many arbitrators start by mediating a case with the mutual consent of the parties that arbitration will be used if resolution is not reached.
The Steps in the Litigation Process in a Typical Divorce
Statement of Claim for Divorce: A Statement of Claim for Divorce must be filed and served on your spouse.
Interim Orders: Upon the filing of the Statement of Claim for Divorce, either party may request interim orders that either permit or prohibit one or both parties from doing certain things, such as, unnecessarily spending or interfering with the other party’s use of property, child support, spousal support, and custody. Interim Orders establish “ground rules” for the parties while the case is pending.
Discovery: Discovery is the process of documenting the facts pertinent to the case. During discovery, each provides information requested by the other party. This typically includes financial records, such as income tax returns, bank statements, employment records, and life insurance policies. The parties also disclose the names of fact and expert witnesses who may testify at trial.
Honest disclosure of all assets and liabilities is essential during discovery to obtain a fair and equitable division of all the family property. Unfortunately, some parties are not forthcoming and honest. We have a great deal of experience dealing with these problems and will use the discovery process to gather complete information.
The parties also exchange sworn statements, which list all property owned by the parties and all liabilities owed by the parties.
Questioning: Questioning is a form of discovery in which the person being examined answers questions, under oath, that a lawyer asks.
Final Preparation for Trial: Before trial, both parties submit documents to each other which set out how they want the various issues, such as property division and child support, resolved by the Court. The complexities of the issues usually determines how much time will be devoted to trial preparation. Much more time will be spent in trial preparation than in the actual trial. This preparation includes talking with witnesses, preparing exhibits, and drafting direct and cross examination questions.
Trial: At the trial of the divorce case, each party presents evidence on the contested issues in the case. Determination of the division of the property and liabilities, and the validity and meaning of premarital and post-marital agreements are some of the most common contested issues in a divorce case. If children are involved, the contested issues may include the rights and duties of each parent, who the child or children will reside with, whether child support will be paid and the amount of child support, and the time sharing schedule.
At trial, each party testifies under oath about facts that are relevant to the contested issues. Each party may also call witnesses to testify. Typically documents relevant to one or more of the issues are offered into evidence, the judge announces the decision on each of the disputed issues and pronounces the parties divorced.