At a recent social function someone asked me whether a person could be forced to get a divorce if he or she doesn’t want one. Although we as family lawyers understand the everyday details of divorce, we sometimes forget that other people don’t.
My law partner, Andee Hastings, and I spent a recent weekend exhibiting at the Georgia Association of Marriage and Family Therapists (GAMFT) conference, talking to people about how mental health professionals and lawyers can work together when a couple decides to divorce. In many cases a therapist is the first person to know that a divorce is imminent, and that therapist may be able to guide clients to the right professionals.
But whether you’re a therapist, a lawyer, or a friend or family member of someone contemplating divorce, you may be dealing with a person in emotional crisis. If so, it might be helpful to understand a little bit about divorce options.
First, it’s important to know that while it takes two people to stay married in Georgia, it only takes one to get a divorce. Georgia is a “no fault” divorce state, meaning that either spouse can ask the court for a divorce if the marriage is irretrievably broken with no hope of reconciliation. The real question in a divorce is not whether the couple will get a divorce, it is whether the couple will destroy each other and their children in the process. It is imperative that a divorcing couple choose the least destructive divorce process possible, considering their individual circumstances. Some divorce options include the “kitchen table” method, collaborative practice, mediation, arbitration, and litigation-or any combination of these methods. Regardless of the actual method a couple uses to resolve their differences, the court must issue an order granting the divorce.
The “kitchen table” method is exactly what it sounds like: the parties sit down at the table and agree on the disposition of their property and debt, alimony, child support, and parenting time. Ideally the couple has consulted lawyers before negotiating their agreement so that they have a good working knowledge of the issues they need to decide. Although some couples use Internet forms to draft their own paperwork, the law is complex and each court in Georgia has different paperwork requirements. Therefore we always recommend retaining an attorney to draft the paperwork and shepherd it through the divorce process. Incidentally, reputable divorce lawyers in Georgia will never represent both parties; instead a lawyer will represent one party and the other will be unrepresented, or will hire someone to review the paperwork before it is filed.
Collaborative practice is a non-litigated, non-adversarial team approach to divorce. Thecouple uses a team of professionals, including lawyers, coaches, child specialists, and financial neutrals to help them implement creative, unique solutions that work for their family. In a series of meetings the team and the parties work to resolve all issues pertaining to the divorce. Although the collaborative divorce process typically takes several months, it is usually faster than a litigated divorce of similar complexity and better addresses the couple’s and the children’s unique needs. Because a collaborative divorce is not litigated, all team members pledge not to go to court if the process breaks down. If one of the parties chooses to litigate after having tried collaborative, the professional team withdraws and the parties must retain litigation counsel.
Mediation is a method in which the parties (with or without their lawyers) meet with a neutral third party to try to resolve their differences and reach a settlement. Mediation is not an ongoing process like a collaborative divorce; it typically lasts only one or two sessions. Although some couples choose to try mediation before filing for divorce, it is most frequently used during the divorce process to help the parties settle their case. Most courts order mediation before a final hearing in any case; some courts offer free or discounted mediation services for litigants.
Arbitration is a truncated adversarial proceeding in which a private third party, usually a lawyer with arbitration training, hears evidence and makes decisions in the case. At our firm we equate it to hiring a private judge. Arbitration can be less costly and time consuming than litigation because the hearing is usually less formal and both sides have agreed in advance on more relaxed rules of procedure and discovery. Sometimes couples use arbitration when they are able to agree on all but one or two issues and will accept the arbitrator’s decision on the remaining issues. Clients choose arbitration for a number of reasons, including privacy, more limited financial resources, and better control of the hearing schedule and procedures.
Litigation is the traditional way for a couple to get a divorce. Each party retains an attorney to represent him or her in hearings and negotiations, gather evidence, give legal advice, and present the case at trial. Couples sometimes use the litigation process to punish each other because litigation is really a long process of preparing the case for ultimate trial and trying to gain a negotiating advantage. The parties spend most of their time and money demanding information from the other party and responding to the other party’s demands. In a litigated case, the couple can expect to participate in legal and procedural wrangling for several months to several years. They may have to appear in court many times, usually taking at least a half day off from work each time they have to appear. Sometimes they wait all day for their cases to be called, only to be told to come back the following day. Some courts hear divorce cases only one or two days a month, so if the case is not reached, they may have to come back in another month or two and try again. Believe it or not, the vast majority of litigated cases eventually settle, often just before or during trial, and after the parties and their attorneys have already spent the time, money, and effort to prepare. Ultimately in a litigated case the judge makes all decisions about the divorce and the couple must abide by the judge’s orders or be held in contempt for violating the court’s order.
Not every divorce method is appropriate for every divorcing couple. Some people need to have their “day in court” before they are able to move on. Others want to avoid court at all costs. Others litigate until their frustration with the process outweighs their anger and they eventually settle their cases. As professionals, our task is to get to know our clients, to help them determine which method is right for them and their families, and then help them achieve their goals in the most efficient, least destructive way possible.