What are the different process options to get a divorce?
1. The Do-it-yourself (or “kitchen table”) approach:
Husband and wife negotiate directly with one another and reach an agreement without assistance from anyone. If both parties communicate well and have the same amount of knowledge and information about their finances and other matters, then this process can work so long as both are at a high-functioning place in their lives. Most people find this process difficult, as communication is normally difficult when people are facing divorce; also, more often than not, one party is (or feels) less powerful or knowledgeable than the other. Most of the time, neither has an attorney. Once the parties reach agreement, one of them normally goes to an attorney to get their agreement drafted into an agreed divorce decree. At that point, issues often arise that the parties had not considered in their negotiations.
2. Negotiation with help from a Minister, Therapist, or other Trusted Friend:
Often, people feel most comfortable talking through their divorce with a minister, therapist, or other trusted friend or relative. Like the do-it-yourself approach, this process can work if the issues are relatively simple and the parties share the same knowledge and information about their finances and other matters. This approach shares the same difficulties as the do-it-yourself approach. Communication is normally difficult and most often one party is (or feels) less powerful or knowledgeable than the other. The trusted friend or adviser may not be trained or knowledgeable about mediation skills, Texas divorce law, what issues must be addressed, or how to draft the agreement that is reached. Like the do-it-yourself approach, when one party takes the agreement to an attorney for review and to draft a decree, issues often arise that the parties did not address in their negotiations. To go back and try to reach agreement on additional issues may leave the unrepresented party feeling nervous or suspicious.
Collaborative Divorce
The Collaborative process is a natural choice for many due to its three key elements:
- A contractual commitment NOT to go to court (which requires that the collaborative attorneys withdraw if a party decides to choose Court);
- Transparent process with voluntary discovery; and
- Interest-based negotiation.
The parties and their attorneys work toward resolution using the structure of the process which creates a safe atmosphere for face-to-face negotiation. Each meeting has an agenda and minutes are kept. First, parties memorialize their agreement to use the process by signing “participation agreement”. Second, the parties identify their individual interests and goals. Interim issues are addressed per the agenda. The parties then decide what information is needed and determine how that will be gathered and shared. When both parties agree they have adequate information, only then does the focus shift to generating options to address their interests. After options are generated, then negotiations begin to determine which option best meets both parties’ goals and interests. When a final agreement is reached, the parties know that all issues have been addressed and the attorneys draft the decree.
Both parties must have attorneys and most often the “team” includes a financial neutral and “communications coach” as well. Court-ordered mechanisms for production of information and other court-provided remedies are not available. With no court-ordered deadlines, parties and their attorneys must be mindful of creating their own schedule and meeting interim goals to get the case to a final conclusion.
Mediation
A third-party neutral mediator can help parties reach an agreement through mediation. Mediation allows open communication between the parties; however, mediations often are handled in a “caucus-style”. This style has parties sitting in different rooms (not face-to-face) and the mediator goes back and forth between the rooms negotiating towards agreement. Sometimes the parties will mediate without attorneys. In that case, normally one party will take the agreement to an attorney to draft a divorce decree. Often, the parties mediate with attorneys present as well. Mediation is required in Travis County before a final hearing will be held in a litigated family law case.
Arbitration or Special Master
This process allows the parties to pick their own judge and pay him/her to hear all of the evidence and make a ruling. This process is a lot like a traditional trial, but it is private and normally takes place away from the courthouse. It normally takes place after temporary orders are in place and discovery is complete.
Litigation
Litigation is the traditional process that allows for a judge to hear the evidence and make a ruling on all issues presented. The public trial takes place in county courthouse where suit is filed. A trial is the last resort for most and can occur only after temporary orders are in place, discovery is complete, and mediation and other negotiation attempts have failed. For obvious reasons, this is the most expensive process, financially, emotionally, due to the time that must be invested.
Frequently Asked Questions
Why do I need an attorney?
The decisions you make during your divorce will affect you and your children long after the decree is final. To be certain that you are making wise decisions, it is important that you consult an attorney and get the information you need and sound legal advice specific to your situation.
My spouse and I would like to hire just one attorney to represent us to draft our “agreed” divorce decree. We’ve agreed to everything already. Can “we” hire you?
In Texas, one attorney may NOT represent both spouses. Nor may an attorney hired by one spouse give legal advice to the other spouse.
Do you charge for an initial consultation?
You will receive very important legal advice about your specific circumstances and your options. I charge my normal hourly rate for an initial consultation, but I will give you up to two hours of my time (for the price of one hour) to discuss your case and answer any questions you may have.
Do I have to come to your office for an initial consultation or can I just hire you over the phone?
I prefer that you come to my office for the initial consultation, as I have found that the best way to get to know someone and establish rapport is to meet in person. If you live far away, I may agree to schedule a phone consultation.
What should I bring to the initial consultation?
Bring any documents relevant to your case, if you have them available. Important documents include tax returns, other documents regarding your assets and debts, and pre-marital or post-marital agreements you signed. Since family law matters are normally stressful, try to write down any questions/concerns and bring that with you to our first meeting so you don’t forget anything.
How much will it cost me to get a divorce?
At the initial consultation, you will be quoted a retainer fee based upon the issues of your case. Payment of the retainer is required to retain me as your attorney. The initial retainer fee does not in any way reflect the dollar amount that your case will cost. There is no way to know how much it will cost to resolve your case. No attorney has a crystal ball. I will do my best to be efficient and to work with you to determine what you can do to reduce your overall legal expenses.
How long will it take to get a divorce?
The time required to get to a final divorce decree depends on the issues that must be resolved, as well as the parties’ willingness to work together towards an agreement. In Texas, statutes require a waiting period of 60 days after the Petition is filed before a final Divorce Decree may be signed by the Court.
Does that mean I can get a divorce 61 days after the petition is filed?
If both parties have worked out an agreement, a Final Divorce Decree is drafted, and you’ve both signed it, then you can finalize your divorce 61 days from the date the Petition for Divorce was filed. Most divorces typically take longer to conclude, especially those who choose the traditional litigation process.
|
