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Divorce and Privacy

Your Six Different Divorce Alternatives

By

by Leslee J. Newman, CFL-S, Family Law Attorney
Orange, California

1.  Self-Representation (“Pro-Per”)

Both parties may consult with attorneys, but decide to represent themselves in or out of court. Both parties are ultimately responsible for the agreements and paperwork that goes to the court for filing including the final Judgment.

Leslee Newman
Leslee Newman

2. One-Party Representation

One party is represented by an attorney and the other is not. Generally, the party who has the attorney is responsible for drafting the paperwork, and the unrepresented spouse would get advice as to what he or she wants included in the final Judgment.

3. Both Spouses Have Representation

Both spouses have their own litigation counsel, and try to settle parts of the case through settlement discussion. If they are unable to settle some or all of the issues, the case goes to court for a judge to make the decisions for the spouses.

4. Mediation

Both spouses retain the same mediator who acts as their neutral facilitator and does not represent either party. Depending on the style of the mediator, and whether or not the mediator is an attorney, the spouses may have the benefit of being educated as to the law, available options, recommendations, and suggestions, etc. If the mediator is an attorney, there is the added advantage of accurate drafting of the court forms, and the Judgment of Dissolution of Marriage.

Because the mediator is a neutral party, the mediator encourages both spouses to consult and review the Judgment with other attorneys before signing. There is also a confidentiality privilege in the California Evidence Code, called the mediation privilege, which can help to protect the privacy of the mediation process. If the spouses are able to settle all of the issues of their case through mediation, they do not have any court appearances.

5. Collaborative Practice

The Collaborative Process features an integrated team of professionals. Each spouse retains their own Collaborative lawyer, and a divorce coach who is a mental health professional assisting with the communication, the emotion of the divorce, and helping to regulate the interaction between the parties. The neutral professionals on the team are a financial specialist (forensic or financial planner), and a child specialist, if there are minor children or adult children still living with the parents.

Through the Collaborative Process, the spouses and their professional team enter into a written agreement with the understanding that if the collaborative process breaks down before the entry of the Judgment or completion of the case, then the professional team, including the attorneys, are disqualified from going to court and continuing on the case.   This process usually includes the privilege of confidentiality in the written stipulation to begin the collaborative case.

6. Cooperative Process

The cooperative process begins with an informal agreement between the spouses and their attorneys not to go to court, but to conduct settlement discussion and face to face meetings to settle the issues of the case.   Unlike collaborative practice, however, the spouses and their attorneys are not disqualified from going to court if there are any issues that cannot be settled out of court.

10 Best Reasons To Do Your Divorce Collaboratively

By

by John R. Denny, Family Law Attorney Hittelman Strunk Law Group, LLP, Newport Beach, California

  1. The team approach helps you get through the process without going to war.

You will work with a team of legal, financial, and mental health professionals who are specifically trained in the Collaborative Process. They agree to work with you to reach a settlement outside of court.

  1. You make the decisions, not the judge.

In the Collaborative Process, the parties do not go to court. They resolve their differences through cooperative negotiation. Thus, all orders are made with both parties’ agreement.

  1. The process is less expensive than a litigated divorce.

While all cases are different, studies show that a successful Collaborative case is less expensive than a litigated case, even one which settles before trial.

  1. Coaches help you and your spouse learn to communicate in ways which can reduce the adversarial nature of the divorce.

In a full team Collaborative Divorce, each party will work with an assigned mental health professional acting as a coach. Among other things, the coach will assist the party to avoid the type of communication which will further divide the parties, and make settlement more costly and difficult.

  1. Your children’s interests are taken into account, and brought forth through a neutral child specialist.

The child specialist’s role is to be the voice of your children at the Collaborative negotiation table. The child specialist speaks to the children at age-appropriate levels. This enables both parents to have a clearer perspective on what their children really think and feel.

  1. More privacy – less of a court record.

Because you are not in court, your case does not become a public record. The only documents filed with the court are those absolutely necessary to make your agreement legal. You will not file declarations telling the world your private business.

  1. You can avoid going to court.

Because Collaborative Divorces are processed outside of court, you will not be subject to court rules, except those necessary for the court to process your judgment. You will not have to give public testimony in court. You will not have to miss work, or other important functions, to attend court on a date which may be inconvenient for you. You can go as fast or slow as you choose, and not be subject to the delays which budget shortages increasingly cause in litigated divorce cases.

  1. The process allows for more creative resolutions than the court is permitted to offer.

The court is bound by California statutes dictating what must be done in terms of property division, support, and custody. In a Collaborative Divorce, the parties are free (and assisted) to reach a result which uniquely fits their family.

  1. You will acquire skills which will enable you to more effectively co-parent after the divorce.

The Collaborative Process requires the parties to work together in order to solve the issues in their divorce. Working together is a skill which many couples facing divorce have lost. It is exactly what they will need to do in order to effectively co-parent their children after divorce. Thus, going through the process helps the parties with the skills they will need post-divorce.

  1. Result of a Collaborative Divorce: a better life after divorce.

There will be many events for the rest of your lives which a couple will both want to attend post-divorce without making it awkward for everyone else who is there. When you have children, these events include graduations, weddings, and grandchildren events.

Even when you do not have children, there are often overlaps in family and friends. Events with these people can be much less awkward when the divorce process itself has not driven the parties even further apart. This may be the best – and most lasting – reason to do your divorce collaboratively.