YOU HAVE OPTIONS FOR HOW TO RESOLVE YOUR FAMILY LAW DISPUTE
The choices you make now will impact your financial future and your children for years to come. The decisions to be made can seem confusing and uncertain. Our attorneys can help you decide if collaboration, mediation or litigation is right for you.
Collaboration
The Collaborative Process offers an efficient and productive method of resolving family law disputes. It is a process that treats the divorce like a series of problems to be solved, not a series of battles to be fought. The process starts with both parties retaining unaffiliated attorneys who commit to working together to help the couple reach agreements that are mutually acceptable. In most cases, the parties benefit from the assistance of a divorce coach, who is a mental health professional and acts as a facilitator to the negotiations, and a financial neutral, who provides analysis of the parties’ finances and objective financial information.
The parties identify their goals at the outset and commit to engaging in respectful negotiations to reach an agreement. The negotiations occur in a private setting, usually one of the attorneys’ conference rooms. With the help of the team, the parties create a marital dissolution agreement and parenting plan outside the courtroom.
The collaborative process is often an effective way to resolve many divorce cases, especially those involving high net worth individuals, who may have complex marital property, family-owned and closely-held businesses, stock options, deferred compensation plans, intellectual property and/or real estate holdings. The privacy of the process is highly appealing to those who are concerned about keeping information involving their finances and proprietary business information private.
The collaborative process is also attractive in cases involving complex emotions. The process protects the privacy of the intimate details of the parties’ lives and the lives of their children. Many parents find they communicate better after resolving their divorce through the collaborative process than they did before the process began.
Patricia McCarter and Caroline Beauchamp were among the first lawyers in Middle Tennessee to take advantage of the collaborative law process and have both served in positions on the board of the Middle Tennessee Collaborative Alliance. They firmly believe the collaborative process cuts down on the emotional and financial cost of divorce.
Mediation
In mediation, an impartial third party (the mediator) assists both parties in negotiating to reach a resolution. The mediator cannot give either party legal advice or advocate for either side. Mediation can occur at any point in the litigation process – from the time before either party files for divorce until right before a trial. Depending on where the parties are in the process, they may obtain separate expert opinions prior to mediation. These could include real estate appraisals, business valuations, and reports of forensic accountants and psychologists. Also, depending on where the parties are in the litigation process at the time they go to mediation, they may have already gone to court (by filing motions) to ask for temporary relief, such as support, while the litigation is pending or to establish a temporary parenting schedule.
In divorce cases in Tennessee, parties are required, unless an exception applies to the case, to attend mediation prior to attending a final hearing in court. It is important for an individual to be aware of his or her rights before going to mediation. Mediation may occur with just the spouses and the mediator, or with attorneys present. Regardless, parties may obtain legal advice from a lawyer before, during, and after the mediation.
Litigation
When negotiations fail to resolve disputes, and the parties cannot reach an agreement on a temporary issue or the final outcome of the case, either party may move the Court to make a decision. Courts were designed to make decisions for people who are in conflict and cannot reach agreements on the decisions to be made. The court process is very formal and rule-driven; the litigants must comply with certain requirements before the Court hears their case. Further, depending on the case, a number of steps, such as written discovery and depositions, may be taken as a part of the process. This process takes a significant amount of time and expense. The last step in the process is appearing at a trial, in which the Court makes decisions to resolve the case. In divorce, these decisions include those regarding property classification and division, spousal and child support, and custody of and parenting time regarding children.
While litigation is necessary in some cases, there can be drawbacks to relying on the court system to make decisions about your family. Sometimes the information you would like the Judge to know is not admissible. Further, sometimes the Judge will make a decision that neither you nor your spouse likes. Litigation is an adversarial process, especially in custody cases, where each side must point out all of the things that will help his or her position. This often means that negative or embarrassing facts about you, your children, your spouse, and your relationships with each other and other people will be brought forth. Further, important information about your finances will be made a part of the court record. Almost all court proceedings are public, with most court documents being part of the court record as well.
Resources
Middle TN Collaborative Alliance
International Academy of Collaborative Professionals