In the fall of 2020, I found myself in the emergency room. I thought I was having a heart attack. Luckily that wasn’t the case but the doctors had no answers for me. They did not know what was going on. One mentioned a panic attack. Well, whatever it was, it woke me up. For decades, I have pushed through the stress of my job and avoided all things relating to self-care. My nature is to stay with something I commit to regardless of how unhappy or stressed it makes me. My exhaustion each night gave me the rationale to put off healthy living. However, spending a morning in the emergency room was my wake up call. I realized that I could no longer avoid the inevitable. I needed to face reality and figure out what changes I needed to make for a more satisfying and healthy future.
Over the next few weeks, I realized that 15 years of representing children, parents, spouses, and grandparents in high conflict domestic relations disputes was taking its toll on my physical and emotional health. A colleague of mine had taken the plunge into a non-litigation family law practice three years earlier. She encouraged me to take a similar step—to move away from litigation and dedicate my practice to collaborative divorce, mediation, and negotiated settlements.
I debated whether I wanted to make such a change at this point in my career. The legal practice of family law is a challenge but the unknown is even more worrisome. People referred clients to me because I understand and am skilled at navigating high conflict divorces involving difficult personalities, complex high net worth marital estates, and nasty custody disputes. I worried whether a 100% out of court family law practice is sustainable. However, my colleague had done it so why couldn’t I? Weren’t most of my clients wanting to avoid court?
Does this sound familiar? Do you feel any of these feelings as you make decisions about the future of your marriage or relationship? The unknown is scary, but knowledge is power.
If you are contemplating divorce or ending a long-term relationship, here are your options:
A 2006 survey conducted by the Utah state courts found that 47% of divorce filings in Utah involve two unrepresented parties. Many couples either cannot afford an attorney or are afraid that hiring an attorney will create more conflict. The Utah court system offers an online service that allows individuals to fill out forms that once completed, will provide all the documents needed to finalize their divorce.
- PROS: This process is inexpensive and relatively easy to complete. If the issues in your divorce are not complex or your marital estate is relatively small, this may be a good option.
- CONS: The forms are often incomplete and, in my opinion, poorly drafted. Too often parties include language that conflicts with the boilerplate language in the court forms. This makes the final documents confusing and difficult to enforce. Correcting such errors is more expensive than if an attorney had been retained to draft the original divorce documents.
A mediator is a specially trained individual who helps parties find a common ground and facilitates reaching a settlement. Mediators cannot represent either party or give legal advice. If a couple is not able to reach an agreement on their own, a judge will require the couple to attempt at least one round of mediation before scheduling trial. It is important to find a mediator that is adequately trained and experienced but also fits the needs of your situation. For instance, if you and your spouse want to maintain control over your resolution and find creative solutions, you will want a mediator who is trained in facilitative, transformative, or insight mediation.
- PROS: The majority of contested divorces or paternity actions resolve in mediation. If you are represented by an attorney, your attorney also attends mediation. Attorney-mediators or retired judges turned mediators will have the knowledge of the law and requisite training that is needed to successfully reach a resolution. Retired judges often use a more directive approach meaning they will be more likely to provide advice on what you should do or offer their opinions about whether your position will succeed in court.
- CONS: Unfortunately, the mediation profession is not regulated, meaning there is no association overseeing practicing mediators. Any person can claim to be a mediator even if they have no training. Non-lawyer mediators are not allowed under Utah law to draft divorce documents.
Collaborative Divorce is a new approach for couples to resolve their disputes respectfully—without going to court—while also working with trained professionals. The collaborative process involves a complete paradigm shift from the traditional approach to divorce or separation. Rather than focusing on what each party’s rights and obligations are under the law, settlement is negotiated based on the interests and needs of not only the couple but also their children. The essence of Collaborative Divorce is to offer spouses or partners the support, protection, and guidance of their own attorneys, who are committed to staying out of court. Additionally, Collaborative Divorce allows couples the benefit of utilizing professionals including financial specialists, divorce coaches, child specialists, and other professionals, who all work together as a team in helping the couple reach their best potential outcome. Couples and their team of professionals are committed to maintaining open communication, information sharing, complete transparency, and exploring solutions that satisfy the needs and priorities of the family.
- PROS: The most significant benefit of the Collaborative Divorce process is that the couple maintains total control throughout the process and makes the final decisions with the assistance of specially trained attorneys and other professionals, who are working as a team toward a mutually created settlement. Costs are manageable and usually less expensive than litigation because the team model is set up for the financially efficient use of experts. The timetable on finalizing the divorce is solely up to the couple.
- CONS: If the couple is not able to reach an agreement, the attorneys are required to withdraw, and each spouse or partner is required to retain new counsel.
Traditional litigation is the model that is most represented in the movies. When parties are unable to reach agreements on their own then a judge is required to make the final decision. In litigation, the court controls the process, which is based on an adversarial system. There are significant delays in getting hearings and a trial scheduled. If the marital estate is complicated, then separate experts will have to be hired to support the litigant’s position. If parents cannot agree on custody and parent-time, a custody evaluation may be needed. Hiring these experts is extremely expensive and often delays final resolution.
- PROS: If one spouse or partner refuses to cooperate, the other spouse or partner can obtain a final resolution and is not held in limbo.
- CONS: Litigation is expensive. Because of the adversarial nature of the process, the family is often traumatized. It is expensive. While parties hope to have their day in court, each party is usually upset with the final resolution and feels they have not been heard.
Recognizing that a marriage or long-term relationship is ending can be frightening. Change is hard. The unknown is unnerving. However, staying in an unhealthy relationship takes its toll on the couple and their children. It can even be quite damaging. It is critical to take the time to figure out what you truly need and where you need to go. Know there are divorce options out there that will support your family transitioning from one home to two homes without the trauma of a nasty court battle.