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Getting from point A to Point B in Divorce
By Kevin Mahoney on November 19, 2014

Having a lot of options can be both a blessing and a curse.  Often people who are at a difficult stage in their life due to an unhealthy or broken relationship prefer not to have many choices in order to try to simplify things.  On the other hand, due to individual circumstances and needs, having flexibility can many times be an important factor as well.

It is important at the outset to consider how the lawyer can assist and what role he/she will play in the process.  From the attorney perspective, there are three basic paths that people can choose to get from point A (considering a divorce) to point B (being divorced).  In no particular order, a brief description of each follows:

  1. Mediation. A mediator is a neutral third party who assists couples in constructively discussing issues that need to be resolved and then preparing a written agreement to give legal effect to those terms.  As a result of this last component, it is highly recommended that the mediator be a family law attorney so that there is knowledge as to what issues should be addressed but also so the written agreement is drafted properly and can be legally enforceable and accepted by a court.  Although it is very common for mediating  parties together to meet with the mediator to work through these issues, it is also possible for each party to have the involvement of his/her own independent attorney either for consultations along the way or less commonly to assist during the mediation sessions.  The reason for this is because the mediator is neutral and cannot give legal advice to one party to the detriment of the other party. As a result, the attorney mediator is technically not representing either party in the context of the mediation.   Most mediators will highly recommend, if not require, that the parties consult with an independent attorney prior to the mediated agreement being signed in order to make sure that the parties have had the opportunity to receive independent legal advice.  The mediator is permitted to give legal information but cannot offer independent advice.  For many people, mediation represents the most cost-efficient manner in which to move from point A to point B.  However, it is ultimately agreement-based and, to the extent that the parties are not able to reach an agreement, that process will not be successful.
  2. Traditional Approach. The more traditional approach of a client hiring an attorney to represent him/her who then will deal with the other spouse who may or may not then be represented by his/her own lawyer allows the parties a great deal of flexibility as they can work cooperatively toward an agreement or they can utilize the court system to help them move their case forward in a litigated posture. Our courts first attempt to assist people in reaching an agreement (or partial agreement) to the maximum extent possible; however, ultimately, that system is set up so that the court will ultimately make decisions for the parties to resolve outstanding issues.  As a result, this process does not require the parties to come to an agreement as mediation does but it is also sometimes faulted for being time consuming, increasing animosity between the parties and potentially removing the parties from making important decisions that impact their lives as the potential exists for those decisions to be made by a third party who does not know their situation as well.
  3. Collaborative Law has been gaining increasing popularity over recent years. This is an agreement-based process; however, both parties are represented by their own respective attorneys from beginning to end.  The lawyers need to be trained in the collaborative process which is overtly non-confrontational and instead specifically geared towards cooperative problem solving.  At the outset, the parties agree with their lawyers that, to the extent that either party withdraws from the collaborative process, the collaborative counsel will not be able to continue to represent them in any traditional litigation, thus providing an incentive for all the parties to work through difficult times within that process.  Very often there is not the use of a neutral mediator because the training that the collaborative attorneys have is geared toward facilitating communication in a manner similar to a mediator and, in fact, many collaboratively trained lawyers are also trained mediators as well.  It has become increasingly common for people to involve a “coach” in the process which is someone trained in the counseling profession that  works with the parties to assist in the emotional aspects of the process which can be very beneficial for the success of that process when things become difficult.  This is especially so when the parties are dealing with custodial aspects of their parenting relationship with their children.  As a result, the collaborative process gives the parties the benefit of having their own respective attorney who can offer independent advice but also has many of the features that mediation does.  Ultimately, it is agreement based and specifically prohibits the use of the court system and litigation, although, by agreement, the parties can be creative in terms of how they come to a resolution of disputed issues.

Only a court can change the legal status in New York from “married” to “divorced”.   However, parties are not limited to the traditional role of the lawyer to obtain a Judgment of Divorce.  To the extent that the mediation or collaborative process results in a signed agreement, it is very common for one of the lawyers that were involved in that process to assist in the necessary paperwork for obtaining a divorce where the terms of the divorce are the terms of the agreement.   To the extent that a legal separation is the desired result, any process discussed above will work.

If you or someone you know is considering a divorce or separation, hopefully this information is helpful.  HoganWillig’s Family and Matrimonial Department consists of a number of lawyers trained and experienced with assisting clients navigate whichever path their clients ultimately decide is best for them.  If you are considering one of these routes and have further questions, we would be glad to assist you.

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