I started drafting this post a couple of months ago, in the meantime Marriage Story was released in theaters and on Netflix, and now has been nominated for several Oscars. The film does a great job of dramatizing the approaches to divorce that I review.
There are as many ways to get divorced as there are to get married. Some people get divorced quickly with little fuss and minimal outside assistance, others have long, complicated divorces with many people (friends, family, professionals) involved. How you approach divorce depends on the circumstances of your life, and I would recommend anyone contemplating divorce spend time reflecting on what approach he or she wants to take before starting the process. Ask yourself, what do I want my life to look like in 6 months, a year, five years? What do I want my relationship to be like with my soon to be ex spouse? What do I want this experience to be like for the rest of my family, or social circle? If you can think about what a realistic outcome would look like, you can then think about which approach is most likely to allow you to arrive at that outcome. Although the range of approaches is infinite, there are four main categories, which I will describe below.
DIY/Pro Se Approach:
Married couples who are getting along relatively well can choose to divorce without any outside help. They can divide up their personal property and finances and file all the paperwork themselves, including paperwork relating to child custody. This is time consuming and stressful work, but it does not require a law degree. Deborah Copaken wrote a great article on her experience with a DIY divorce, otherwise known as pro se. https://www.theatlantic.com/family/archive/2019/02/how-i-got-divorced-without-hiring-lawyer/582508/
As she makes clear, navigating the bureaucracy is complicated, but you can do it. Like other government processes, such as applying for a passport or getting a driver’s license, anyone pursuing this approach has to have all the paperwork in order and be prepared to wait for long periods of time to be seen by the relevant court officials. The cost of a pro se divorce vary based on your location, but in NY the cost is about $500. There are also several online platforms that facilitate the pro se process, such as It’s Over Easy, These platforms save you time, but of course cost money.
Low/Medium Conflict Divorce:
Some couples are willing to work together to get divorced, but would like to have guidance on how to come to an equitable agreement. In this instance, they can work with a mediator. Working with a mediator presumes that the couple agrees to provide all relevant financial information and that they will work with the mediator to create an agreement on all issues relating to the divorce, such as division of assets and debts, child custody and spousal and child support. The mediator is normally paid from marital funds and acts in a neutral capacity.
Depending on the complexity of the assets/debts/support and child issues, this process can be relatively fast. When the parties are both cooperative and organized, I have mediated divorces in a few sessions. The mediator then drafts a memorandum of understanding that is given to an attorney who will work on the settlement agreement and file the divorce paperwork. Often both parties will have a reviewing attorney read through the final agreement before it is filed. For parties who want additional support in the process, each party can retain a consulting attorney to provide legal guidance throughout the mediation process. Mediators also work with financial planners and other professionals to provide the mediating parties with the advice and information they need. Sometimes consulting attorneys will sit in mediation sessions with their clients, alternatively they can just be on call to provide advice and opine on the appropriateness of the agreement.
There are two advantages to working with a mediator. The first is that the process is efficient in terms of time and money. When both parties are sitting in the room together, decisions can be made more quickly. For example, the mediator can walk through a potential financial settlement with both parties and gather and update information together, such as the value of 401ks and other assets. The same is true with working through parenting plans with both parties present— everyone can have calendars and schedules out and make decisions in real time. The mediator guides the discussion and asks clarifying questions, so the parties move towards a plan relatively quickly, and there is no time spent waiting to hear back from the other party, because they are already in the room. The parties work through difficult decisions together, and the mediator keeps the discussion on track and guides it towards resolution.
Medium Conflict Divorce:
In cases where the parties are less willing to work together, or feel in need of a designated advocate, each party has an attorney, but they can choose to hire collaborative lawyers. Collaborative lawyers sign a contract agreeing that they are representing the client in a negotiated settlement process, and that the attorneys will not litigate the divorce. Eliminating the option of litigation allows the lawyers and the parties to focus on coming to a resolution. Collaborative lawyers will meet in joint sessions with their clients and discuss the whole case and each client’s perspective, this process is usually significantly more expensive than mediation, but may be the best option for parties who are struggling in the process and are less willing to share information and really need an advocate to support them as they move through the process.
High Conflict Divorce:
In a divorce where the parties have had a major rupture of trust and emotions are running very high, the parties may decide they want to see each other “in court.” This usually means parties are not readily sharing any information and are not communicating at all. Or, worse yet, all their communications are combative. In this case each party has an attorney who is preparing for a court battle. All negotiating and communicating go through the lawyers. This can be an appropriate process if there is a serious power imbalance in the marriage, or a history of spousal intimidation or abuse. It is also an extremely expensive approach that can take years to complete. If the parties share children, or otherwise will interact on a regular basis in future years, this process can create a legacy of problems. Once the litigation framework becomes the norm, it is hard to move towards a more cooperative approach. Parties who have a litigious divorce often feel the need to use lawyers to negotiate smaller disagreements, such as custody issues, in future years.
If you are considering divorce and decided on one of these approaches, it is important to know that you can always change course. Frequently couples start in mediation, get angry and frustrated and “lawyer up”; after many months and mounting legal fees that same couple may wish to return to mediation. That is always an option. In fact, many jurisdictions in the U.S. are now mandating mediation in all divorce cases. When it is possible, this is normally the least expensive and most efficient approach, but it doesn’t always work.
Marriage Story Sums It Up Nicely:
I highly recommend that anyone considering divorce watch the new film, Marriage Story, this movie actually shows three of the four approaches I described, mediation, collaborative lawyers (or a version of that approach) and litigation. I really enjoyed this film because I think it does an excellent job of showing why and how a relatively amicable divorce can become contentious, complicated and expensive, I won’t give away what happens in the film, but in the opening scene the couple sits in a mediation session that quickly falls apart. As a mediator I find it painful to watch the scene because I can see how the mediator tried to begin a positive process, but just failed to recognize that the dynamic between the couple required a different approach. Even an amicable divorce is painful, and makes people feel very vulnerable. Vulnerable people have the impulse to lash out or arm themselves to feel safe—many people feel safer with an aggressive lawyer backing them up, even when there isn’t much to fight about. Ironically an aggressive lawyer may make someone feel emotionally safe while putting them in a financially unsafe situation by running up huge fees.
While you may feel powerless as you contemplate the process of getting divorced, you can choose an approach that works for you. In the best case scenario, it works well to think about the appropriate approach before starting the process, but even if you find yourself in the midst of a divorce process that feels like it has taken on a life of its own, you can always put on the brakes and reassess. Sometimes it makes sense to switch mediators or lawyers, or just sit down and try to talk with your soon to be ex. It is important to focus on what you really want, as opposed to what you could fight for, but don’t actually want. I often sit with clients and get into the very specific details of the life they hope to have, ensuring that negotiation is grounded in a vision of a positive future, rather than fueled by reaction to the conflict that is happening right now. Getting divorced isn’t easy, but there are lots of ways to approach it, and it can be a productive process that minimizes financial and emotional costs.