This is the “traditional” divorce process where lawyers are retained. It is by nature an adversarial process and is most often how couples “fight it out” – using attorneys to represent them.
In a litigated divorce each person gets their own attorney to represent them. Ethically attorneys can only represent one person or side in any action, so the divorcing couple cannot retain a joint attorney.
Once retained, each attorney gets all of the financial and other pertinent data (discovery), reviews it, and creates a settlement offer. Due to the adversarial process, the attorneys focus on the areas of advantage and disagreement between the couple. Each divorce lawyer attempts to work out a settlement that favors their client. During the process communication between the couple is often funneled through the attorneys. This is an adversarial process of letting the attorneys “fight it out” and, as a result often increases the conflict between the divorcing couple. A litigated divorce is a drawn out and costly process, regardless of the couples initial intentions. It is even possible that the couple will not be able to reach a full divorce settlement through their attorneys and the terms of the divorce are settled through a trial.
A lessor known option for divorcing couples, collaborative divorce can be looked at as a hybrid of the litigated divorce and a mediated divorce process. Couples that choose a collaborative divorce do agree not to litigate and have to obtain new counsel should the collaborative process end unsuccessfully. At a minimum, in a collaborative divorce, each person retains his or her own trained collaborative divorce attorney. Additional collaborative divorce professionals may be brought on as appropriate including divorce coaches and neutral financial or child specialists.
Regardless of the number of professionals retained, all must be trained in collaborative divorce as it is a different process than a litigated divorce. Like a litigated divorce the attorneys work out a divorce settlement agreement. Like mediation, and unlike a litigated divorce, the collaborative divorce attorneys build off of the areas of agreement and work with the other collaborative professionals retained by the couple to quickly create a settlement that meets the needs and wants of the couple. Since the collaborative divorce attorneys and professionals are focused on building on the agreements, the process is significantly more efficient and cost-effective than a litigated divorce – despite the additional professionals involved.
The most peaceful and efficient means of creating a divorce with the assistance of a divorce professional is divorce mediation. In divorce mediation a couple chooses a neutral professional mediator who is trained to facilitate effective communication and agreement between the divorcing couple. Building off the shared areas of agreement no matter how small, the mediator enables the couple to quickly create a divorce settlement where both spouses are in full agreement as to the terms.
Often known as the path to a “win-win” solution, divorce mediation is the only means involving an outside divorce professional that directly gives the couple the control over the settlement process and agreements. It is a confidential and private means of creating a divorce settlement. Couples who choose mediation, may or may not have filed legal divorce papers prior to meeting with a mediator. In addition, in the rare event that mediation fails and litigation occurs, state law bars the information disclosed and discussed in the mediation session from being used in future litigation.