Family law writer for the Huffington Post, Caroline Choi, suggests the following considerations in determining whether a negotiated divorce is for you.
Negotiated divorces will help alleviate the pain and stress of a divorce. However, negotiation is not always an option if your spouse is simply unwilling to participate in the proceedings. In such circumstance, a litigated divorce may be your only option.
Negotiation of a family law matter is direct discussion of differences between the parties to resolve their disputes. Negotiation can take place through lawyers or between the parties themselves over a kitchen table (often called the “Kitchen Table” approach) or anywhere the parties choose.
In settlement, each party usually has a “wish list” of things they would like from the negotiations. Some items may be more important than others. As such, each party will negotiate for what is higher on their wish list and is more willing to give up the lower priority items. In a perfect settlement, both parties get the high-priority items on their lists.
In a contested trial, the court decides which items on the list a party does or does not get. The court may award a lower-priority item instead of a higher-priority item. Frequently, in a contested trial, neither party gets what they want. It is important to note that most divorce cases eventually settle outside of court.
While a settlement is no guarantee that the future relationship of the parties will be amicable, a contested trial is guaranteed to be detrimental to the relationship. The ultimate result is likely to be generally unsatisfactory to both parties, and at the end of the trial animosity between the parties is usually more entrenched.
One party may be represented by counsel or both parties may have attorney representation.
In this scenario, each party is represented by his or her own attorney. The attorneys work together, through settlement negotiations, to reach amicable decisions without ever meeting in a courtroom.
The parties will negotiate amongst themselves. The attorney then drafts the agreement representing the parties’ decisions in negotiations.
The parties can negotiate on their own or with assistance from another person or entity. An attorney can then prepare an agreement representing the parties’ decisions. It is always recommended that each party speak with independent counsel for advice to learn about their legal rights and obligations before signing any agreement.
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