Divorce - Choosing a Process

The following article prepared by Maleski Eisenhut & Zielinski, LLC appeared in the January/February 2010 edition of Hunterdon County Woman Magazine:

DIVORCE - WHETHER TO LITIGATE, ARBITRATE, MEDIATE OR COLLABORATE 

 Married couples who realize their marriage is ending are left with the question, "How to put a legal end to marriage?"

 The prospect of divorce can be overwhelming. A couple confronts choices: Who should have custody of the children? What should be done with the home? How do we determine the appropriate amount of child support and alimony to live separately? How are savings and retirement assets divided? This can be daunting.

 Perhaps the most important step is to become educated on the different processes available to resolve issues. A description of them may help them to select which is best.

Litigation

 The traditional route to divorce is litigation, the formal route through the court system. A party files pleadings to initiate the process. Deadlines are established by the court, for example, to produce discovery, including the identity of assets, income and liabilities. Experts may be retained. A public record is created. Though potentially costly, litigation is sometimes the only method of resolving a contentious case, or where the parties do not have equal bargaining power. 

Arbitration

 Couples may elect to retain the services of an Arbitrator, who acts like a private judge, to apply the law to the facts admitted in evidence through testimony and documents. The Arbitrator's decision is binding with few bases for appeal. The setting is informal and the schedule flexible. The Arbitrator may be able to focus exclusively on the one matter without interruption. Sessions are confidential, except in custody/parenting time arbitration, where a record must be made. Arbitration may be faster than a trial and is used when disclosure of information in court has negative consequences.

Mediation

 Mediation is a process in which a couple attends sessions with a neutral third party to assist them to reach a voluntary settlement. The Mediator facilitates the process and guides the parties toward agreement. Parties frequently also work with their own attorney to ensure a knowledgeable and equitable resolution. The benefits are confidentiality and freedom from the rules of court or evidence. Parties control the terms of the ultimate settlement. They compromise to tailor terms to their specific needs. At the end of the process, the Mediator drafts a Memorandum of Understanding, which is not binding. Normally, it is reviewed by the parties' respective attorneys, who put the agreement into final form and file it with the court. If each party fully discloses sufficient information voluntarily, Mediation may be faster and less expensive than litigation. Yet if there is domestic violence, or an uneven balance of power, Mediation may not be appropriate.

Collaboration

 Collaborative divorce is a hybrid of litigation and mediation. It retains advantages of both. In the collaborative process, the couple and their specially trained attorneys agree to disclose all financial information, without exception. They promise not to file applications with the court. Attorneys and specialists work together to solve the issues, for example by bringing in a divorce coach trained in mental health issues to facilitate communication. The goal is to craft a fair agreement that addresses the needs of the family. The benefits are confidentiality and the specially trained professionals working together with the parties to achieve a fair process and an equitable agreement. Collaborative divorces may proceed faster and with fewer legal expenses than a traditionally litigated case. If the parties do not settle, they must hire new attorneys and begin the litigation process. Thus, in advance the parties and attorneys demonstrate a commitment to settle and reach a fair compromise.

Contact Nadine Maleski at 908-237-9711 or online for help in understanding which option would work best for your situation.