How Can Mediation and Collaborative Law Be Used in a Divorce?

 Posted on February 24, 2022 in Mediation

Getting a divorce can be a complicated process. Regardless of the level of conflict between spouses, there will be multiple legal and financial issues that will need to be addressed. Even if a couple has agreed to work together to resolve these issues amicably, they may encounter a number of concerns that will affect their finances, their relationships with their children, and their ability to move forward after their marriage has been dissolved. These issues can become even more complicated in cases where a couple becomes involved in contentious disputes. Fortunately, divorcing couples have a number of options for resolving their issues and completing the divorce process, and in many cases, they can benefit by using mediation or collaborative law.

At Weiss-Kunz & Oliver, LLC, we work to ensure that our clients have the tools they need to complete the divorce process successfully. We provide guidance throughout the legal process, advising our clients on the issues that they will need to address and the ways they can protect their rights and resolve conflicts. We can help divorcing spouses determine whether mediation may be a good option for creating a divorce settlement or whether a collaborative divorce may be a beneficial method of resolving disputes and finalizing the end of their marriage. If an amicable resolution is not possible, we are fully prepared to provide representation during divorce litigation and advocate on our clients’ behalf in hearings and trials.

Contested Vs. Uncontested Divorce

The approach that may be taken during the divorce process will often depend on whether a case is contested or uncontested. In an uncontested divorce, a couple will agree to work together to resolve all divorce-related issues without proceeding with the litigation process and holding a divorce trial. During an uncontested divorce, a couple may encounter multiple types of disputes, but they will work to resolve these matters outside of court and create a divorce settlement.

A contested divorce will involve situations where a couple is unable to cooperate with each other or cannot reach agreements on certain issues. In these cases, litigation may be necessary to resolve certain disputes. However, a couple may still be required to attempt to reach a settlement before they can proceed with litigation. For example, a judge may order a couple to use mediation, and a divorce trial may only be allowed to proceed if the mediation process fails because the couple cannot resolve some or all of their disputes. 

Whether a divorce is contested or uncontested, a couple will need to address all of the legal and financial issues that must be resolved before their marriage can be terminated. Since they will be required to separate their lives from each other, they will need to determine how to handle matters related to:

• Marital property division - A couple’s assets and debts will need to be divided fairly and equitably. While some couples may be able to address these issues fairly easily and reach agreements that will allow each spouse to have the financial resources they need, others may need to address multiple types of complex assets. In a high net worth divorce, a couple may need to determine the value of assets such as family businesses or professional practices, retirement accounts or pensions, multiple real estate properties, and valuable items such as artwork, jewelry, or collectibles. Reaching agreements on how ownership of these and other assets will be handled may be difficult, and a couple may need assistance as they determine the best ways to handle these matters.

• Child custody - A married couple who have children together will need to address multiple issues related to how they will raise their children following their divorce. In most cases, parents will share what is known as legal custody of their children, meaning that they will both share the right and responsibility to make decisions about matters such as education and medical care. Spouses will also need to create a schedule for parenting time that details where children will primarily live and the amount of time they will spend with each parent. Reaching agreements on these matters can sometimes be difficult, and parents will want to make sure they are putting their children’s best interests first as they make decisions about legal and physical custody.

• Financial support - Parents have an obligation to provide child support that will address their children’s ongoing needs and certain types of expenses. In some cases, spousal support may also be appropriate, and one spouse may make ongoing payments to the other to ensure that they can maintain their standard of living or take steps to become self-supporting. Since multiple issues related to the income spouses earn and their ongoing expenses may affect the support a person pays or receives, it will be important for spouses to make sure they fully understand their rights and responsibilities in these matters.

When addressing these issues or other legal concerns during the divorce process, a couple may benefit by participating in processes that are meant to defuse conflict and ensure that they will be satisfied with the agreements they make. Depending on a couple’s circumstances and their ability to cooperate, mediation or collaborative divorce may offer good solutions that will allow a couple to reach a settlement and complete their divorce more quickly and efficiently.

Pros and Cons of Divorce Mediation

During mediation, a couple will agree to work together to address the outstanding issues in their divorce. They will negotiate a settlement that fully details the decisions they have made about matters related to their property, the custody of their children, financial support, and any other issues that will need to be addressed before their marriage can be dissolved. During these negotiations, they will receive assistance from a mediator, who will act as a neutral third party, guiding their discussions, identifying issues that will need to be addressed, and offering suggestions on how certain matters may be resolved.

Mediation can offer a number of benefits. A mediator will have experience addressing issues that commonly arise during divorce cases, and they can offer helpful suggestions for how disputes may be resolved. They can also explain how the law applies in a couple’s case and ensure that both spouses have a complete understanding of their rights and the ways that the decisions they make in their divorce settlement will affect them in the future.

When a couple uses mediation to create a divorce settlement, they will have complete control over the decisions they make. The terms of their settlement will not be legally binding unless both parties agree on them and the settlement is approved by the judge in their case. Since a couple will need to cooperate to reach a settlement, they can work to find solutions that will be beneficial for both parties. This process can be especially helpful for divorcing parents since it can help them determine how they will be able to work together to raise the children after their marriage has ended.

While mediation is a good solution in many cases, there are some situations where it may not be helpful. Because mediation requires cooperation and compromise, a couple may not be able to reach a settlement if one or both spouses refuse to work with the other party or make concessions when necessary. In these cases, mediation may simply prolong the divorce process, and litigation may be required to address the outstanding issues. 

Mediation may also be inappropriate in situations involving domestic violence or other forms of abuse. Since these relationships often involve an imbalance of power and controlling behavior by one party, a spouse who has been the victim of abuse may be concerned about their ability to advocate for themselves or reach fair agreements with their former partner. To avoid the perpetuation of abusive behavior, other methods of resolving disputes will usually be a better solution in these cases.

Pros and Cons of Collaborative Divorce

In divorce cases involving complex financial issues, collaborative law may be an effective solution for reaching a settlement. When a couple uses this method of dispute resolution, they will each hire an attorney who will represent them during the negotiations, but they will agree to work together and cooperate to find mutually beneficial solutions. The parties and their attorneys will sign an agreement stating that each spouse will provide a full and honest disclosure of any information requested by the other party. By focusing on creating a workable settlement that both spouses are satisfied with, this process can help a couple avoid conflict and complete the divorce process more quickly and efficiently.

During the collaborative divorce process, a couple may also consult with other types of experts to address certain issues. These may include accountants or financial appraisers who can offer guidance on how to address issues related to the couple’s income and assets, as well as child custody evaluators who can help parents determine how to divide and share parental responsibilities and parenting time.

One key benefit of collaborative divorce is the emphasis on cooperation. While the spouses will have attorneys representing their interests, they will focus on reaching agreements and finalizing the terms of their divorce settlement. If a couple is unable to reach a settlement using collaborative law, their attorneys must withdraw from the case, and the parties will need to hire new attorneys to represent them during litigation. This encourages spouses and their legal representatives to resolve their disputes and avoid legal conflicts that may draw out the divorce process.

Because a collaborative divorce requires a couple to work together with each other while being open and honest about their finances and other issues, it may not be an effective solution if either spouse is unwilling to cooperate. Refusal to compromise or make concessions may extend the negotiation process and result in additional time and expenses before a divorce can be completed. Dishonesty by either spouse can also affect the collaborative process, and if a spouse attempts to hide assets, conceal income, or otherwise fail to disclose financial issues that will affect a couple’s divorce, it may be impossible to reach a fair settlement that will protect the interests of both parties.

Contact Our DuPage County Alternative Dispute Resolution Lawyers

While the divorce process can be complex and contentious, it is often best for a couple and their children to find ways to resolve their disputes as amicably and cooperatively as possible. During your divorce, Weiss-Kunz & Oliver, LLC can advise you of the best options in your situation while also making sure you understand your rights and the ways you can protect your interests. Whether you choose to pursue divorce mediation, collaborative divorce, or other options for negotiating a settlement or litigating disputes in court, we can provide you with strong and effective legal representation. Contact our Elmhurst divorce settlement attorneys at 312-605-4041 to arrange a confidential consultation and learn how we can help you end your marriage successfully.

Sources:

https://www.huffpost.com/entry/the-collaborative-divorce-a-litigator-explains_b_59fbb3d3e4b01ec0dede40eb

https://www.brides.com/what-is-divorce-mediation-and-how-does-it-work-1103259

https://www.plannersearch.org/financial-planning/the-advantages-of-divorce-mediation