You have options when it comes to your separation and divorce. Here are the five most common ways.
1. The Kitchen Table Approach
Couples that communicate well can often work out a mutually convenient parenting plan for their children, make lists of their assets and debts, and determine how to divide them fairly. Sometimes, they will draw up a simple separation agreement. This is called the “kitchen table” approach. It is inexpensive, private, and can take a relatively short amount of time.
The kitchen table approach does not work well if you and your spouse have a relationship where historically only one party has controlled and understands the finances, where one spouse is financially dependent upon the other for support, or where there has been physical, emotional, or financial abuse. And by choosing to do it yourselves, there is a risk you may miss something. The legal and financial issues that arise in a divorce are often much more complex than people initially realize. This can make an inexpensive kitchen table divorce more expensive in the long run in missed or mishandled assets, or increased conflict between you and your ex-spouse because you forgot to address certain issues in your parenting plan.
2. Lawyer-led Negotiations
This is essentially a delegated approach. You and your spouse can hire attorneys to negotiate the terms of your separation agreement and parenting plan. You’ll be involved in making decisions with your lawyer, but you won’t discuss proposals directly with your spouse. Each attorney will make and exchange proposals that favors that attorney’s client only. Some attorneys will threaten (and be prepared to initiate) litigation as a means of obtaining concessions from the other side.
Success is dependent upon the personalities and skills of the lawyers and the willingness of both spouses to make concessions. The process is private but can be expensive and time-consuming depending on the personalities involved. If settlement is not achieved, litigation is the likely result.
In mediation, you and your spouse meet with a neutral third party whose job is to facilitate a settlement negotiation. You may, but do not need to, have a lawyer present with you during mediation. The mediation process is similar to the collaborative process in that the mediator gathers financial information from you and your spouse and then helps you fairly divide assets and liabilities, plan for child and spousal support, and devise a parenting agreement in the best interest of your children. Mediation is private. Participants typically share the cost of the mediator’s fee. The process proceeds based on a schedule that the parties determine.
In North Carolina, mediators cannot draft a legally binding separation agreement. Instead, the mediator will provide you with a written summary of your agreements. In most cases, you will then take the summary to an attorney, who will review it for completeness and finalize your the separation agreement and divorce.
4. Collaborative Process
In the collaborative process, you and your spouse meet with a team of specially trained divorce professionals that includes a neutral financial professional, a mental health professional who functions as a “divorce coach,” and attorneys. Other professionals, such as child specialists, appraisers, and vocational consultants, are available as needed. You and the professionals work together to gather information and documents necessary to make decisions regarding your settlement. Information is discussed and decisions made during team meetings. At the end of the process, the attorneys draft the separation agreement and can finalize the divorce without you and your spouse having to go to court. The collaborative process is private. It is more efficient in producing a settlement than lawyer-led negotiations and less expensive than litigation.
If you and your spouse are unable to negotiate an agreement using one of the processes above, then you may need a family court judge to make decisions for you. Litigation, by nature, is an adversarial process, and a courtroom can feel like a very hostile place. Documents filed in court and matters occurring during hearings and trial are public. A decision that a judge makes is based upon the evidence admitted during a hearing or trial, the arguments of the parties or their lawyers, and the applicable law, as set forth in the North Carolina General Statutes and decisions of the appellate courts.
There are specific rules and procedures that all litigants must follow. These rules and procedures are complex, and for this reason, you will likely need an attorney to represent you. Attorney fees in litigation can run in the tens of thousands of dollars. Because of backlogs in the court system, it is not uncommon for there to be delays of months or years before your case is resolved.