In our final segment of the Types of Divorces in The Basics of Divorce Series, we will discuss Alternative Dispute Resolutions and Pro Se divorces as an option to hiring attorneys and fighting your way in a courtroom and out of your marriage.
In the State of Washington, you have 11 months to complete some form of Alternative Dispute Resolution or ADR. There are two styles of Alternative Dispute Resolutions – Non-Adversarial and More Adversarial. Let’s review these two styles starting with the Non-Adversarial.
A NON-ADVERSARIAL ADR
In the Non-Adversarial column, there are several different ways, some of which you may have heard of. One would be the standard negotiation. In some states, they actually call this the Kitchen Table Divorce. In a Kitchen Table Divorce, a couple basically sits together and works out their divorce on their own terms and taking full control and full agency of the decisions being made for their futures as individuals and also as a family.
Another Non-Adversarial method of ADR is mediation. Mediation is where the couple meets with an impartial third party to help them communicate, negotiate and in terms of a divorce, your mediator may have a list of discussion points for you and your soon to be ex to review and make decisions on, which you may not have known to even think about. Most mediators practice what is called Facilitative Mediation. In this type of mediation, the mediator helps the couple communicate and come up with options and agreements which work serve as the foundation of their divorce.
Facilitative Mediation may be viewed as the Kitchen Table Divorce Plus. With the help of a mediator, the couple, who would like to amicably divorce as much as possible, can negotiate some difficult points which they may not be able to if it was just them sitting at the kitchen table. In some instances, the mediator may practice what is called shuttle mediation and keep the couple in separate rooms and “shuttle” from room to room, bringing up the requests and points of one spouse to the other spouse. In these sessions, the spouses can speak freely without having to temper their words or requests as it is the job of the mediator to effectively communicate the requests on behalf of one spouse to the other and to reach as many agreements as possible. With a mediator, the couple still has full control over the decisions being made and can negotiate decisions that may work better for them and may have more agreements made as the mediator may bring up items the couple did not consider while at the kitchen table.
A MORE ADVERSARIAL ADR
Going from the kitchen table and moving closer to the courtroom in cases where the communication is no longer effective and agreements are definitely no longer agreed upon, a couple may utilize several different methods. One method is called a Mediation-Arbitration. This is a hybrid of the mediation process with a neutral and impartial third party who will help to facilitate the communications and the agreements but once the negotiation is no longer possible or effective, the facilitator now issues a binding decision based on the evidence and testimony provided by the spouses. In this scenario, the couple loses some of the decision-making power and essentially hands over what is left to someone else for the final decisions which will affect their family for generations.
Another method of a more adversarial ADR is straight arbitration. Arbitration is essentially where there are one or more neutral and impartial parties who review the information provided by both parties and makes decisions for the couple. These decisions may be binding or non-binding. If the decisions are binding, the couple has essentially given up their power to choose what is best for themselves and their family and handed it over to a group of strangers to do what seems best for the couple and their family.
PRO SE DIVORCE
As you consider which type of divorce is the best for you, your family, and your futures, remember that the more adversarial the process gets, the less control you have over your decisions. Sitting at the kitchen table and working out the details of how you and your soon-to-be ex-spouse want to move forward in your lives separately as individuals, this essentially is the Pro Se divorce. Pro Se in Latin means “for himself”. In a Pro Se divorce, you and your soon-to-be ex can fill out all the court forms and file without the help of anyone else. Many courthouses have people who will help you figure out which forms need to be filed to process your divorce. If these steps are overwhelming, you can also do a hybrid of some sort and hire an attorney or paralegal to help draw up the documents and file them on you and your spouse’s behalf.
As mentioned earlier in the series, hiring two separate attorneys on retainer can be very costly but once you and your spouse have come up with decisions, you can work with a consulting attorney to do the legal legwork for you of navigating the court systems and filing all the paperwork and to file them correctly.
As you consider the different types of divorces available, remember that going before a judge with your attorneys is not the only way nor is it the most effective way. Consider the alternatives such as alternative dispute resolution to help you and your spouse navigate some of the decisions.