Your decision to divorce or separate generates a difficult range of emotional and financial issues. The first question to consider is which process option should be used to resolve your dispute? Each divorce option will ultimately lead to the same result being a formal agreement between you and your former partner so why is this important? The process option chosen will directly impact on the financial cost, length of time and how emotionally draining the process between separation and final agreement will be.
The first divorce option is to sit down at home and work through it together. While this can result in a very quick resolution if you both agree, rarely does it work out this way. Disagreement will often occur over issues and leave you uncertain about both the process and your next steps.
If you are fortunate enough to reach an agreement, it’s important that you have the terms formalised (by a lawyer) to bring certainty to the terms. While this option seems desirable due to the minimal cost, few couples ever find immediate resolution.
Your second divorce option is to negotiate through lawyers via letters. This option allows both of you to put forward your views after the benefit of receiving legal advice and also allows communication to be exchanged “at arm’s length” removing the emotion from the discussions. Once again, upon an agreement being reached, a lawyer will formalise the agreement in the appropriate form.
Your third divorce option is mediation. Mediation has a high success rate and generally can lead to an agreement being reached and formalised during or soon after the mediation takes place. A professional Mediator will conduct your mediation and facilitate negotiations. They will work to find a suitable solution for both of you. Some clients will find this approach stressful, as they will be expected to make quick decisions.
If you are both ready to resolve your situation and come with the attitude of working together this may suit you. It is usually best to seek legal advice before attending a mediation and you may also benefit from having a lawyer with you during the mediation process.
Collaborative practice is your fourth divorce option. It has an extremely high success rate but is not suitable for every couple and/or family. The focus here is on a win/win set of outcomes, ideal for those clients not interested in litigation (going to Court).
You get to set the pace and normally the process will consist of a number of joint informal meetings between both parties and their collaboratively trained lawyers. The key to success is allowing the information gathered to be openly shared and exchanged. Thereafter, both parties will focus on interests rather than positions to work towards a solution that best suits all involved.
Other Accounting, Financial or communication professionals may be invited to participate in the process to ensure the accuracy of information and provide clear paths to resolution. Here the two lawyers work together to ensure an outcome both parties will accept.
Your final choice is litigation through the Court. In some circumstances this is the only option. Here the Court decides your future. The two of you become opponents and the fight begins.
The time it takes for your matter to be heard by a Judge can be emotionally and financially taxing as the process is often held up by both sides and the Court itself. Expect long time frames and disappointment along the way. If children are involved, this process often has a negative effect on parenting relationships. The emotional and financial toll on the family is very high. Relationships get tested, often beyond breaking point.
For all these reasons, we encourage all of our clients to avoid litigation at all costs and instead use their best endeavours to come to a negotiated outcome rather than a Judge’s decision.
Which is the best option for you? Sometimes, this is out of your control. Get honest, straightforward advice from Nik Koolik before heading down a direction you may regret later.
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