In this season are you contemplating a divorce? Is the question “should I stay in my marriage or leave?” frequently running through your mind?  Or perhaps you have decided you want to ask for a divorce or initiate the divorce process in the upcoming months.  As I am writing this, the holiday season is upon us.  Many people have made the decision (individually or as a couple) that they want to proceed with divorce, but want to wait to get through the holidays.  We see an uptick in divorce filings in March and August, with fewest filings in December. 

 Regardless of when you read this, you may think the only option you have for proceeding with a divorce is to contact an attorney. You may ask your friends if anyone has an attorney they recommend, or Google “divorce attorney” and see hundreds of results and start randomly calling places and meet with the first attorney to return your call. And then the case is in the fate of that attorney’s hands.  You could have selected a wonderful attorney who will be professional and encourage keeping the case calm and amicable, or you could have selected a “bulldog” attorney who enjoys the art of the fight and will stir the pot.  

 In that meeting with your attorney, they may or may not discuss all the legal process options for how you can get a divorce.  They may like to stick with their traditional litigation model and start with suggesting you file the lawsuit and serve your spouse with notice of divorce filings.  And that certainly sets a tone for the divorce out of the gate, even if you or you and your spouse want a less adversarial divorce.  Regardless of your mindset, having words like “lawsuit” and “plaintiff” and “defendant” and “sue” and knowing you have 30 days to respond to the “compliant” consciously and subconsciously impact your experience with the divorce process. 

There are other options and other ways to proceed with the divorce process.  Understanding and choosing the process that is the best fit for you, your family, and your situation will have an impact on your experience during and post-divorce. It is important to gather all the information on your options and choose wisely.

Here’s an overview of the options.  I’m going to limit this article to just highlighting the options.  Each one in and of itself could have its own blog post discussing the process in more detail and pros and cons.  Perhaps that will come down the road.   

We’ll start with the one people are most familiar with.

Litigated Divorce

Key players: two attorneys, each advocating for and representing one spouse

Process: This follows the structure of one spouse filing the divorce lawsuit, the other spouse responding if they contest or do not contest the lawsuit, and deciding on “fault” or “grounds” for the divorce (the basis for why you are suing and asking the judge to grant you a divorce).  The main channel of communications is between the two attorneys.  This process can range from mildly adversarial to cut-throat War of the Roses style divorce.  A lot depends on your attorney and your spouse’s attorney.  Both attorneys spend time gathering all the financial information.  Letters are sent back and forth. Interrogatories are exchanged. Depositions can occur.  Motions may be filed during this process to go to court and have judge make decisions on things as the case is progressing. Attorneys attempt to negotiate for their clients and send proposals back and forth.  If parties cannot reach agreement, they are mandated to attempt mediation in good faith before a case ever reaches trial where the judge makes all the decisions.  If the case goes to trial, this is a public event for people to attend, it is on record, and witnesses may be called to support your case. You may even have experts testify as to the issues.

Litigation can last years (average litigated case takes 2 years, some lasting much longer), cost hundreds of thousands of dollars, and turns the volume up on the hatred between the two spouses.  It is extremely difficult to co-parent effectively after a litigated case – even if it does not go to trial.  Litigation is very stressful and much of it is out of your control, including when court dates are set, how long it takes in between events or making decisions, lots of waiting around – all of this increases anxiety and stress and reduces satisfaction in the process.  And if your case goes to a judge, none of the decisions about your post-divorce life are in your hands.  

Next, we’ll switch to the polar opposite.

Self-Represented Divorce

Key players: you and your spouse

Process: You and your spouse sit down and decide on all the issues. Typically, you work through a packet of paperwork the court provides and make decisions.  You create your parenting plan, decide on the division of assets and debts, and then file all the necessary paperwork with the courts.  *This depends on your state laws regarding who can and cannot file an agreed divorce and represent themselves.*

While this may sound great in theory and is the least expensive option, it requires a high level of emotional maturity on both spouse’s parts, and working knowledge of all the issues.  Divorce is a complex process.  I had no idea how involved it was until I became a divorce coach and witnessed everything that goes into dissolving a marriage (which is essentially dissolving a business).  The marital dissolution agreement (MDA) you create is a legally-binding contract. You may make decisions that are not in your best interest or your children’s, not on purpose, but just because there is no one to educate you on all the issues or you have less working financial knowledge than your spouse. 

Process Options in the Middle

Mediation

Key players: you, your spouse, a mediator (who may or may not also be an attorney), you and your spouse may also be represented by attorneys

Process: Completing a mediation without attorneys present requires you and your spouse to find and hire a mediator in your area.  A mediator is a neutral third party who will help facilitate communication between the two of you to make decisions and reach agreements for your divorce.  A mediator cannot give you legal advice or financial advice.  They are simply there to advocate for both of and your children and to facilitate resolution. Hiring a competent, effective mediator is critical to a successful mediation session.

It is also important to know the laws in your state regarding a mediator scribing results of a mediation.  In Tennessee, for example, a mediator cannot record the agreement and the clients file that paperwork with the court.  The clients have to record it themselves, or then take the agreements to an attorney to draft up the legal paperwork. 

Mediation can also occur when both parties are represented and have attorneys present.  This is oftentimes a way to have the legal representation, but keep things more casual, low-key, and cooperative.  Even if attorneys are present, the mediator still has the role of working the negotiation to reach agreements.  Mediation can occur with all parties in the same room, or each party can be in separate rooms and the mediator goes back and forth (also known as shuttle mediation).  The mediator may or may not also be an attorney.  The advantage of having an attorney-mediator is the mediator can speak to what he or she has seen in court over the years and what judges are likely to decide if mediation fails and you go to court.  That way, if the particular issues is not in your favor, you don’t feel as though your attorney is against you - the mediator is just telling you how it is from a neutral perspective. 

Mediation is typically completed in one day, it may take 8-12 hours (or more), but it is all wrapped up.  However you and your spouse may decide you want to break it up into two sessions to reduce decision fatigue and emotional distress.

Mediation can take place at any point in the divorce process if you are proceeding with the litigated model or two attorney representation with an “agreed” divorce. 

Wait, you can have attorneys and not follow the litigated model?

Yes.

“Agreed Divorce” Model

Key players: you, your spouse, one or two attorneys

Process:  This process involves only attorneys and no outside professionals to help facilitate negotiations to reach settlement agreement.  You and your spouse are filing an uncontested divorce.  This does not mean you emotionally “agree” that you are getting a divorce (you can still not want the divorce), but it means you are not contesting the lawsuit and pursuing an adversarial litigated process. 

Both parties can have attorneys.  In this case, the attorneys still do the gathering of the financial information and work together to facilitate negotiations to reach a settlement.  You and your spouse are more likely to be doing direct communication about the decisions than in traditional litigation model.  Or only one spouse can be represented by an attorney.  That attorney looks at all the issues and advises the one represented spouse, who then takes everything back to the kitchen table where the two spouses discuss and make all the decisions. 

The success of this model depends on the two attorney’s ability to cooperate and work well together or the ability of you and your spouse to communication well and make decisions together. 

 And then there’s a model which combines the best of all the processes and adds additional support roles.

Collaborative Divorce

Key players: you, your spouse, two attorneys, a neutral financial expert, and a neutral divorce coach

 Process: A collaborative divorce tends to all three aspects of a divorce: the financial divorce, the legal divorce, and the emotional divorce.  The attorneys are present to give each spouse legal advice.  The financial expert gathers all the financial information and helps educate all parties on assets and debts. They also help facilitate coming up with options for the negotiations and helping each party make informed decisions.  The divorce coach (who is a licensed mental health professional, mediator, and trained divorce coach) serves multiple roles including helping each spouse emotionally process the divorce, facilitating the team meetings to keep things moving forward and on-task with the agenda, de-escalating conflict in team meetings, and is the “project manager” of the divorce case (scheduling meetings, assigning homework, knowing what needs to happen and when, providing structure to the case).  The Coach also ensures the professionals are acting in collaborative manners and not becoming positional or adversarial. 

In a collaborative divorce, the spouses are agreeing on some basic structure principles: that everything stays out of court (it is all private and not public record), they will be forthcoming and transparent with financial information, and they will utilize an interest-based negotiation style (rather than positional) to make decisions for their post-divorce life.  Clients have a high level of control over the decisions in a collaborative divorce.  All of the negotiation meetings are done in the same room, which can be emotionally difficult, but the coaches and professionals help facilitate the discussion and ultimately it is more efficient and effective if everyone is in the same room. The clients are also agreeing that if the collaborative process breaks down, then they will have to start over and get new attorneys.  This withdrawal provision is there to prevent people from using the court as a threat “I’ll take it to the judge; I’ll see you in court” and encourages people to continue when the going gets tough.  Because it will.  However, statistics have shown that termination of a collaborative case rarely happens and success rates are similar to litigation cases settling before trial (around 90%).  Collaborative divorce has a high success rate.

If you proceed forward with a collaborative divorce, it does not mean there is lack of conflict.  Most people associate the word collaborative with working together, harmony, on the same page, etc.  No, we expect there to be conflict and issues and complexities with the case.  That’s why there is a divorce coach and trained mental health professional to understand the complexities of the marital dynamic, to help manage the conflict, and help the couple learn to transition to co-parents if children are involved.  Pursuing a collaborative divorce just means you are agreeing to decide the issues of your divorce in a different way, to hopefully have a more amicable relationship post-divorce, and to keep your children out of the middle. 

There is also a hybrid model of collaborative law and mediation, which is an emerging practice: 

 Collaborative Mediation

 Key players: you, your spouse, and the mediation is co-conducted by a neutral family law attorney and a Divorce Coach (licensed therapist, certified mediator, certified divorce coach)

 Process: The article  Collaborative Mediation summarizes this process well.

As you have read, there are many process options you can choose from for how to proceed with your divorce.  This information here may be overwhelming at this point and if so, that is understandable.  And some options tend to the financial and emotional piece and some do not.  Tending to the financial, and especially the emotional piece, has a major impact on post-divorce life and resiliency throughout the process.  In the collaborative world, we refer to this as the three-legged stool. If one leg of a stool is missing, the stool falls over. If you don’t tend to all three aspects of your divorce, you are likely to fall down at some point in the process.

As a divorce coach and therapist, I have helped couples through and interacted in or within most of these models.  I have worked with couples as the Mediator facilitating discussions to craft their parenting plan and decide their financial decisions (I then typically send them to one attorney to draft the legal paperwork or they may both have attorneys to read over decisions and advise to any issues).  I have co-mediated with a financial neutral and we then sent the paperwork to an attorney.  I have co-mediated with an attorney.  I have been a collaborative divorce coach on many full-team cases.  I’ve even stepped in and completed certain aspects of a case (such as the co-parenting plan) with the spouses who are doing an agreed, attorney-drive case.  And as a therapist, I’ve worked with children in highly-contested litigated cases and counseled many adult individuals going through the divorce process and rebuilding afterwards.  I’ve also counseled adults who have trauma from thei 

Having seen and interacted with all of these models, I can attest to the importance of choosing your process wisely. 

As a first step with many couples, I offer Divorce Options Consultation sessions.  In this meeting, I learn about the specifics of your case, the complicating factors, hear the overall goals, assess for conflict level, and can make recommendations on an appropriate divorce process.  I can also connect you to trusted professionals in Nashville or Knoxville, with whom I work on a regular basis and know they will take care of you regardless of process option.  As much as I try to steer people away from the traditional litigation model due to the emotional destruction, if that is what you need based on certain factors, then I will be honest and say so.  I am available to meet individually to help you decide on your next steps for how to bring up a divorce to your spouse, or discuss process options. And I am available to meet with a couple together to help them decide on the process option.  Again, this doesn’t mean both want the divorce, just that you are moving forward as an informed consumer before you decide on and hire professionals to guide you through a very stressful time in life. 

Interested in scheduling a divorce options consultation?  Please call or email me or fill out an inquiry form.  I am available to meet in person or via secure video platform.

I’d be honored to help you through this difficult time in your life.

This post originally appeared on Emily’s Nashville-based website .