DIVORCE CHOICE

Litigation

Litigation is the traditional form of ending a marriage through a legal process. Most often both parties are represented by two different attorneys. The process is adversarial and often each party strives to get "at least a little bit more than half" of the community estate. The fact finding or "discovery" process is also adversarial. Although the law says that both parties have an obligation to reveal what they know about the assets and debts of the "community estate" (generally what the parties "owe and own" as a result of the marriage), the attorneys usually reveal only the minimal facts that they absolutely have to reveal.

There are often multiple short hearings called Order to Show Cause ("OSC") hearings and each case has the potential of concluding in a trial during which witnesses are called to testify under oath on the witness stand. Although many of the issues in a litigated divorce are often resolved by a stipulation or agreement, the ultimate decision maker in a litigated divorce is a Family Law Judge.

This form of divorce is the most appropriate when the parties are ultimately very adversarial with each other and wish to have an impartial, third-part tribunal (a Judge) decide the issues as to the termination of the marriage. Parties often so mistrust each other that no other form fits the situation except an overtly partisan one. Parties in a litigated divorce usually have a sense that their attorney is "their warrior" going to battle with the other side. Those parties usually feel that their warrior/attorney is defiantly "on their side" in their battle with "the other side" and these feelings are appropriate and needed with certain couples. Due to the adversarial nature of the proceedings, a fully-litigated divorce is generally the most financially expensive.

Mediation

Mediation is fundamentally a very different form of divorce and originates from a different approach or consciousness. The essence of mediation is that a trained third-party neutral assists or facilitates the parties in coming to their own agreement.

Although most mediations involve some discussions of likely outcomes in court, mediation permits consideration of and adoption of solutions that would never be imposed by Judges in a court of law. The "law" is a starting point, and not an ending point, in mediation. The parties, with the help of the mediator are free and empowered to develop creative solutions to their family law problems. Solutions can be "customized" to each individual situation rather than "one size fits all."

While it is not a legal requirement that a mediator be also an attorney, a mediator who is also an experienced family law attorney, can provide the useful information of what a judge would likely do with the facts presented during the mediation negotiations. Also, an attorney/mediator is qualified to create the Marital Settlement Agreement memorializing the parties’ agreement if the case settles.

The neutral mediator does not "represent" either party. The mediator’s focus is helping both parties equally to achieve an agreement which settles the issues in their divorce. Parties are free to have their own attorneys with which they can consult, but this is not required. Occasionally, it is the attorneys who perform the negotiations on behalf of their clients during the mediation.

Mediation is often the least financially expensive form because very often only one (1) professional, the mediator, is being compensated by the parties. Additionally, parties often observe that mediation saves money and stress because the nature of the mediation process eliminates a lot of discovery disputes and sort of "cuts to the chase." Mediation tends to quickly focus on the true areas of dispute between the parties and attempts to rapidly resolve those areas of dispute. Mediation parties often feel "empowered" relative to litigation parties because they resolved their disputes by coming to their own agreement, rather than having the outcome imposed on them by an outsider, a judge. Additionally, a mediated solution is often preferable when the parties have reason to continue to have ongoing dealings with one another because they share children, a family business or the same circle of friends or professional colleagues.

However, mediation requires a willingness to enter into the process with good faith. Parties must be willing to freely and honestly share information about the assets and debts acquired during the marriage or the process cannot truly go forward. Additionally, some parties are bothered by the fact that they do not really have an advocate or professional that is "on their side." Also, the power balance in some relationships does not recommend the divorce for mediation. If one spouse has essentially dominated the other during the marriage, the mediator’s best efforts may not be enough to permit fruitful negotiations to take place in light of the power imbalance.

Collaborative Divorce

Collaborative divorce is a form which is relatively new to the San Diego area. However, this form has achieved great popularity in the San Francisco Bay and the Minneapolis/St. Paul areas. This form was recently highlighted on the national television program "60 Minutes." Along with several other San Diego professionals, in January 2001, attorney Klueck participated in an extensive training program in the Phoenix area in the theory and practice of collaborative divorce.

Collaborative divorce involves elements of both other forms. Like litigation, each party is represented by their own attorney. Like mediation, information must be freely shared and the utmost of good faith is required. Also, like mediation, collaborative divorce is very useful when the parties will likely have future dealings with each other due to children, family or business connections.

A form of collaborative divorce involves other professionals assisting the parties. The parties could each retain a trained mental health professional to serve as a divorce "coach." The coach is the same gender as the divorcing party and assists the divorcing spouse in communicating with the other spouse and with other psycho-emotional aspects of the divorce. Where there are minor children involved, another mental health professional can assist as a child’s helper. Additionally, collaborative parties often employ a joint financial planner to assist them in arranging their financial survival in a post-divorce world.

Although the assistance of any or all of these other professionals may be desirable in any given case, only the two collaborative law attorneys are absolutely required for the process to work. (Divorce coaches are often desirable, but not necessary, additions to the collaborative law team. Such coaches may not be employed depending upon the finances and emotional requirements of any given case. However, if one party employs such a coach, both parties must, or there will be an intolerable imbalance and the process cannot function properly.)

Unbundling

"Unbundling"permits parties to hire an attorney for a specific, limited purpose during the course of a larger family law case. The attorney might be hired to make one specific court appearance or to prepare a specific legal document or pleadings.

Seeking to Serve Professionally

Our office is a "full service" and experienced family law practice. That is, we are qualified, trained and experienced in all three (3) methods of marital dissolution or divorce described above in this document as well as unbundling. We very much would like to assist you with the legal and financial aspects of your divorce.