When Couples Decide They Will Be Seeking A Divorce In CA, What Are The Options To Proceed? (Mediation Vs. Court, Etc.)
Option A: Work Cooperatively
- DIY: Spouses can try to work on the divorce cooperatively (outside of the courtroom) without assistance from attorneys. However, often they do not understand what their rights are, the extent of their obligations, what is in their best interest, or what to include in the terms of the divorce. DIYers often do not realize the mistakes they have made until it is too late.
- Spouses try to work on the divorce cooperatively (outside of the courtroom) with help from an attorney(s). Each spouse may have his/her own attorney. When issues arise that the spouses cannot resolve on their own, sometimes the attorneys can help the spouses reach an agreement without requiring a judge to decide the issue. Working with an attorney in a divorce is important because attorneys can (a) explain what your rights and obligations are, (b) advise you as to what you should do, and (c) be a rational sounding board in a situation which can be very emotional. Significant decisions impacting lives are made in nearly every divorce and it can be very difficult for people to make important decisions when they are in the midst of experiencing many complex emotions. Attorneys are often very good at taking the emotion out of the situation and helping clients make decisions which are based on facts rather than temporary emotions.
- Mediation can help resolve issues couples are arguing over, but the mediator is not allowed to take sides or tell spouses what is in his/her best interest. Mediation is a process usually lead by an attorney whose goal is to get the spouses to reach an agreement. Mediators cannot take sides or give advice as to what a spouse “should” agree to. Thus, a spouse who participates in mediation without having his or her own attorney risks entering into an agreement which may not reflect his or her best interest. For this reason, it is important for people going through a divorce to have an attorney on their side (even at mediation) who will tell them the truth about their situation and help them go into mediation with realistic expectations.
- Collaborative casework – this is when the spouses agree to work together to resolve all issues in the case without the assistance of the court to settle disputes. Financial advisors, tax advisors, therapists and the like are often used in this process to help the spouses reach an agreement. If either spouse decides to pursue litigation, that spouse is required to hire a different attorney to represent him/her going forward. The requirement to hire a different attorney is intended to be a disincentive to litigation. This option is appealing because it is not litigious and the spouses (not a judge) control the outcome. However, it also tends to be rather expensive because of the many professionals whom the spouses are paying to provide input and guidance.
Option B: One Spouse Takes Charge of the Case
This option typically arises in one of the following ways:
- The spouses may work together but one side is doing most of the paperwork.
- Only one spouse is participating (the other does not participate at all in the process). If only one spouse participates, the community property must be split 50-50 (whereas if there is mutual cooperation, spouses can divide up property mostly however they want).
Option C: Litigation
Litigation means taking unresolved issues to court for a judge to decide. For most couples, this is the least favored option because it is usually the most expensive and stressful way to settle a matter; it also requires leaving the outcome up to someone else (i.e., the court).
What Is The Best Option For Me?
Every person’s situation is different, and there will be a lot to consider (goals, personalities, kids, stress, financial resources, etc.). It’s usually best to try to work with the other side cooperatively first. If the spouses can work cordially with each other, that will greatly reduce their legal fees and stress. Sometimes having a cordial relationship is not possible which is when litigation becomes more likely.
Even if the spouses get along pretty well, it is a good idea for a person who is considering getting a divorce to consult with an attorney. Getting a solid understanding of what to expect, and of what each spouse’s rights and obligations are, can help a person make good decisions.
For more information about Divorce Cases, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (707) 900-4500 today.
The ideas discussed in this article are for general informational purposes only and should not be construed as legal advice. The reader should consult with an attorney to determine what is in the reader’s own best interest.