By Anthony C. Adamopoulos, Esq.
Question Two – What is the best divorce process for me?
Recently in Holiday Time, Divorce Time? Remember…, I wrote about making the decision to divorce. If you have made that decision, it is time to consider the Process.
There are two overall divorce processes – the Court Process and the ADR (Alternative Dispute Resolution) Process.
When to Choose the Best Process for You:
The first step is to pick the best process for you, then pick your attorney.
All too often, people go to an attorney first. This is not the best approach because attorneys are best at “what they do”. For example, if you go to a surgery oncologist for advice on how to handle a newly discovered cancer, you will most likely get advice on the best surgery. If you go to a medical oncologist, you will get advice on cancer drugs. The radiology oncologist will give you advice on cancer radiation. It is the same in divorce. Study and select the process before selecting the attorney.
Court Divorce Process
The Court Process assumes a confrontational route. The confrontation begins when you or your spouse declare, in a public document called Complaint for Divorce, that you are suing him or her for divorce and you want custody of the children (if any) and an equitable division of all property. In this public document, the Plaintiff is the accuser and the defendant is the accused or defender. (In the Court Process, all proceedings and most documents are open to and available to the public for viewing and copying.)
In Massachusetts, there are rules, procedures and statutes that set out the procedure for using the Court Process. One of the rules is called Time Standards.
When considering what process is best for your needs and budget, it is important to understand the effect of Time Standards on your needs and your budget.
The Standards establish a list of events that must be attended to. Failure to attend to an event could result in sanctions. I say “attend to” because although the Time Standards order certain acts, for example, the completion, filing, and serving of a Financial Statement, experienced divorce attorneys know there are other rules that permit parties to skip, delay or get around a Time Standards rule.
Sound confusing? For experienced attorneys it is not; for persons who represent themselves, it may be the first of many revelations to be had. If you represent yourself, the goal is not to get it all right- that’s not going to happen, but to not pay a sanction when you get it wrong.
For those considering cost issues, the Court Process by its nature will require you to pay your attorney for “attending to” a required event under the Time Standards. Given the number of “events” ordered in the Time Standards, this can be costly.
Under the Court Process, if you and your spouse cannot resolve your differences, you will have a court trial. If you thought the Time Standards caused anxiety and costs, wait until you learn about the Rules of Evidence in a court trial. Learn more about what a court trial entails by clicking and reading my article: Who does court trials anymore?
ADR Divorce Process
ADR is shorthand for alternative dispute resolution. In divorce, there are three alternative approaches for divorce resolution – non-confrontational adversarial, Collaborative divorce and mediation. Regardless of the approach you use, the only time you will use the court system is when you appear for your uncontested divorce hearing of about five minutes. No Divorce Complaint! No Plaintiff! No Defendant! No Time Standards! No dirty linen washed in public!
The key to resolution in this process is for you and your spouse to have very competent non-confrontational adversarial attorneys. Be sure to check out an attorney’s reputation. If an attorney thinks like a general, talks like a boxer and moves like a warrior, he or she is a warrior and not a non-confrontational adversarial attorney.
Collaborative Divorce is a unique process where you, your spouse, and your own trained and certified collaborative attorneys, and other specialists, work together for, and only for, resolution of all issues.
In Divorce Mediation, you and your spouse work together to resolve your own issues with the help of a divorce mediator. The mediator is not a legal expert or advisor; the mediator establishes the atmosphere and uses proven techniques to help you and your spouse reach agreement on all divorce issues.