Divorce cases are extremely sensitive situations, and there are several ways that spouses can seek a resolution. Your unique Northern Virginia family law needs will determine whether a Collaborative Divorce, divorce mediation, or divorce litigation are right for you, and by better understanding the elements and characteristics of each choice, you can make an informed decision about your legal options.
Collaborative Divorce is fast becoming one of the most popular alternative dispute resolution methods used in family law. It occurs when the lawyers for both spouses agree to assist their clients to resolve conflicts by using cooperative techniques, instead of adversarial strategies, and eliminates the need for a judge or court to provide a resolution. A negotiated outcome is the desired goal, with all parties involved agreeing that no litigation will occur throughout settlement talks. In fact, both spouses and their lawyers sign a “Participation Agreement,” where they agree that if a settlement cannot be reached, the attorneys will withdraw from the case, which gives both spouses great motivation to settle their case.
A Collaborative Divorce model is arguably the healthiest of options because it fully takes the needs of the children into account, allows the parents to find better, more effective ways to communicate and deal with each other, and often utilizes parenting experts to handle the parenting piece of the divorce. These parenting experts are referred to as collaborative coaches and either have backgrounds as psychologists or psychiatric social workers.
These arrangements minimize the conflict that generally accompanies divorce, as this conflict can take a toll on the children caught in the middle, and it ensures that children have their needs addressed during and after the divorce proceedings.
Division of Property
With the help of collaborative attorneys and often a collaborative financial neutral, who help the spouses determine options for dividing their property and assist them with evaluating those options, spouses often come up with solutions that are more creative, well thought out, and suited to their particular situation than those available to them in litigation.
Collaborative Divorce is not cheap, but is usually substantially cheaper than traditional litigation and going to court. It does require hourly fee based lawyer’s and sometimes expert’s fees, like traditional divorce, but attorneys will not need to charge for discovery (interrogatories, requests for production of documents, admissions, and depositions), trial preparation, and hearings.
Mediation is a legal process in which people that have a conflict work with a neutral party to develop an agreement that will address the needs of all parties. It allows you the chance to be understood while also getting the opportunity to hear the other party in order to resolve your dispute. A mediator or mediators will help you determine the issues that need resolution and will facilitate a give-and-take discussion of possible solutions.
Mediation is commonly used in child custody cases and can help parents to establish and maintain consistent presence and involvement in the lives of their children.
Division of Property
In Virginia, the court system uses “equitable distribution” in order to decide on the property of a divorcing couple. Mediation can help spouses to enter their own agreements about how they would like to divide their property. A mediator can help you to draft a separation agreement that memorializes your wishes.
The cost of mediation will vary, but, provided the divorcing couple’s conflict level is relatively low, this method of dispute resolution is generally less expensive than collaboration or litigation. Cost related factors will include the mediator’s fees, the cost of counsel throughout the process, and the costs of attendance at the sessions.
Preferably a last resort, however, if you and your former partner are unable to reach an agreement about the division of property and child custody via collaboration or mediation, litigation may be unavoidable. This process often concludes in a trial in which a court will make all necessary decisions. When making decisions, the court will look at factors like the reason for the divorce, the situations of both parties, and the interests of any children involved.
If custody is contested in a family law case, the court may appoint an attorney to represent the best interest of your children. This differs from the Collaborative Process and mediation, where you and your spouse have control in determining what living arrangements will work best for your kids.
Division of Property
When spouses in Virginia cannot reach an agreement regarding the division of property, the court will distribute the marital assets between the parties in an equitable fashion. Equitable is defined by what the court considers fair and not always what is “equal” or “50/50.”
When pursuing litigation for a family law case, most parties will hire an experienced divorce or child custody attorney to represent them and their interests. In addition to these charges, expert fees, court costs and filing fees will also be incurred.
Family law litigation allows you to have your arguments heard in court, and if you are unhappy with the outcome, you sometimes can appeal the decision. However, trials can be lengthy and extremely expensive, and you will be stuck with the rulings of a judge, who, outside of your trial, does not know you or your spouse, does not know your children at all, and is hamstrung by the limited solutions available in the Virginia Code and Virginia case law. Additionally, there is less privacy associated with litigation than collaboration or mediation, as hearings are held in open court and the details of your case will become public record.