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Hi, everyone, and thank you so much for tuning in to the Divorce Field Guide. My name is Ani Mason, and I’m a divorce lawyer and mediator, and also the creator of this podcast.
Today, we’re in Episode 9, and we are going to be doing a quick overview of the different divorce process options that we talked about in the last six episodes. Then, I’m going to dive in to a couple – two, in fact – of the most common questions that I get from everybody who’s at the outset of their divorce process, no matter which process they are in.
OVERVIEW OF SIX DIVORCE PROCESSES
So, let’s start with that overview. We talked about six principal processes that are available to you when you are going through a divorce. They were the DIY Divorce, mediation, collaborative law, settlement negotiation, litigation, and arbitration.
There’s an important distinction between these six processes. The first four that I mentioned are focused solely on settlement, on coming to an agreement between you and your spouse. The last two that I mentioned, litigation and arbitration, are focused on submitting issues to a third party to make a decision for you. Not to say that that’s simple, but that’s the focus. Litigation and arbitration are not focused on coming to a settlement, and the first four processes, DIY divorce, mediation, and collaborative law, and settlement negotiation, are solely settlement-focused.
There is some overlap between the processes or there can be, in particular, between settlement negotiation, litigation, and even arbitration. It’s very common that litigation is happening at the same time that settlement negotiation is happening, but the two can operate independently of one another, and they don’t have to happen at the same time.
Just by way of a reminder, DIY divorce is where it’s just you and your spouse, not working with any mediator or attorneys.
Mediation is you and your spouse working with one neutral mediator, principally. The discussion is taking place between the three of you in the room, but you’re both – you have the option to, and I generally encourage my clients to – consulting with outside attorneys, called consulting attorneys or review attorneys, to help you in the process.
Collaborative law is also another settlement-focused process where you and your spouse each hire your own, independent collaborative attorneys, and they work with you together, in four-way meetings, to help you come to a settlement agreement. The collaborative process, as well as all of these other processes, can incorporate non-legal professionals in a role of expert, be it a financial expert or an expert on parenting issues. That’s true of mediation, as well, but collaborative law is especially targeted toward incorporating other professionals in the process as needed.
Settlement negotiation, similar to collaborative law, it’s focused on settlement, it’s led by attorneys, but the big distinction there is that your attorneys are really doing the bulk of the negotiating between them, in writing, on the phone, through email. You’re not doing so much of the in-person meetings that the collaborative law process is based on, or that a mediation process would be based on.
Then, transitioning to the processes that are not focused on settlement, litigation. That’s a process in which you are both represented by independent attorneys who are assisting you in preparing your case for an ultimate trial and decision by a third-party neutral who’s the judge. As I’ve mentioned before, the vast majority of those cases, of litigated cases, ultimately, are settled, so there’s, typically, some settlement negotiation going on at the same time that the litigation process is going on.
Then, arbitration, which is usually not a stand-alone process. It’s something that can be coupled with a settlement negotiation or even a litigation. Arbitration is a process in which you and your spouse are represented by attorneys, and then you select and privately hire your own neutral arbitrator to make binding decisions for you that you elect. Those are typically on more financial than parenting issues.
So, that’s a very quick overview of the processes that we focused on episodes 3 through 8. Then, I want to just maybe give a few take-homes, and then I want to dive in to these questions that come up all the time for people at the outset of a divorce process.
KEY TAKE-HOMES ABOUT THE DIFFERENT DIVORCE PROCEESES
The basic take-home is to think about, at the outset, whether you want a process that’s focused more on settlement or focused more on preparing to have a third party make a binding decision for you.
Focused on Mutual Agreement vs. Neutral Decision-Maker
As I said, the first four processes that I mentioned, DIY divorce, mediation, collaborative law, settlement negotiation, focused on settlement, on negotiating the terms of your settlement that you will ultimately draft as a contract and then file with the court. Whereas, litigation and arbitration are really focused on preparing, in the best possible way, to make your case to a third party neutral who then will make a binding decision.
I want you to think of the process options in those terms. The biggest thing I want to say about them is that there is no best process option. That’s probably obvious to you if you’ve heard me talk about them so far. Every case is different, and every couple is different, and these processes are different. I don’t know what the right process is for you, but I have a strong sense that you will probably be inclined and have some sort of intuition toward one process or another. I really encourage you to honor that and to follow that intuition. And to the extent you don’t, you should meet with somebody who’s familiar with the different processes and talk them through, and see what might work for you.
Voluntary vs. Obligatory Process
In addition to being focused on settlement versus focused on having a third party make a decision for you, some of the bigger distinctions in the processes to keep in mind are this element of: Is the process voluntary or is it an obligatory process? The settlement-focused processes are voluntary and the ones that are focused on having a third party render a decision for you are processes, litigation specifically, it’s obligatory. If one spouse chooses it, you are in litigation, you don’t have a choice. Arbitration, both spouses have to elect to hire an arbitrator. In the likely event that you don’t have a prenup that sets forth an arbitration clause, you can’t be forced in to arbitration, you have to agree to it, but then you can be obligated to the decision that the arbitrator comes to.
Led By Advocates vs. Led By A Neutral
Then, final important distinction between these processes is: Are they primarily led by attorneys, attorney advocates, or are they, primarily, led by a neutral?
Even though both mediation, and arbitration, and, actually, litigation involve neutrals (the mediator, the judge, the arbitrator), the only process that is not really led by attorneys is mediation. Litigation and arbitration are still very much attorney-dominated and led by attorneys, as is a settlement negotiation process, as is a collaborative law process.
So, you want to give some thought at the outset to: Do you want to mainly be working with attorneys in your divorce, or do you want to be mainly be working with a neutral mediator? Or, in the case of a DIY divorce, do you want to be mainly be working with each other and not outside professionals?
Process Must Work For Both Spouses
The last thing I would say – I think I already said that before, but this is truly the last thing I would say on the topic – is that whatever process you choose, for you to get to the best possible resolution and for you to set yourself up for the most effective and successful negotiation possible, the process needs to work for both of you.
You may have a really strong preference for, say, mediation, but if your spouse is not comfortable in mediation, that’s not a good process for you and your spouse. May be a good process for you, but it’s not a good negotiation process for you if it’s not a good one for your spouse. So, if they’re more inclined toward collaborative law, or they’re more inclined toward a traditional settlement negotiation, it is in your interest to defer to your spouse’s preference or, I guess, to equally incorporate your spouse’s preference along with your own. Not to defer to your spouse over you or vice-versa, but that your spouse’s opinion on the process is something that you should take into consideration to the same degree that you take in your own preference with regard to process, because it really needs to work for both of you.
MOST COMMON QUESTIONS RE DIVORCE
Okay. That’s our summary of the different divorce process options. Let’s turn now to, what I would say, I haven’t recorded any statistics on this, but I would bet money that these are the two questions that I most commonly get from clients that are in the outset of a divorce process, which is: How long does the divorce process take? And how much will the divorce process cost me?
Those two questions, by virtue of the fact that mediators and lawyers charge by the hour, how much your process costs is inextricably linked with the question of how long it will take. I’m going to speak to them both, but I’ll speak to them somewhat interchangeably. They can be parsed out or separated from one another because they’re not exactly the same thing. You can have a process that’s not very expensive that takes a very long time, and you could have a process that’s very expensive that doesn’t take a long time, but they tend to correlate, is what I’m trying to say. Cost and length of process tend to correlate.
How Long Your Divorce Will Take
The first thing I need to say at the outset about, let me just say, how long your process, your divorce process, will take – I don’t know. I don’t know; nobody knows. No lawyer or mediator can tell you how long your divorce process will take.
What I will tell you, in my own experience, and this is not based on any statistics, is that a range of average divorce cases would be, in terms of duration, somewhere between nine months and two years.
I’m talking the negotiation of terms, and the drafting, and then signing of your ultimate agreement. I’m not speaking to, once you submit papers to your local court, how long it takes them to process the divorce paperwork, because, that, I have no idea. Every court system is different. Even within New York City, there are differences between the different boroughs in terms of how long it takes them to process divorce papers and, certainly, differences within the state of New York and differences between states. Then, even within the same court, processing times can change over time as the court’s workload and resources change.
So, I don’t know how long the uncontested divorce process takes in your particular location. I’m just talking about the negotiation process, which is coming to terms and then drafting the contract that reflects those terms. A rough range would be somewhere between nine months and two years.
That’s not speaking, at all, by the way, to a litigated case. I’m really focusing on how long the average divorce…and you’re overwhelmingly likely to settle, so I’m talking about a settled case. A litigated case all the way through a trial to completion, resulting in an order from a judge – years. That will take you years. So that’s good incentive to settle if you have the option to settle, and you don’t want your divorce process to take several years, which is what would happen if you waited for a final and full judgment issued by a judge after trial. You’re definitely looking at several years in that process. So, I’m focusing on settlement processes.
Of course, it goes without saying, there are outliers. There are people who settle and negotiate their contract in a matter of months, three/four months, and there are people who take more than two years, even in an amicable settlement-focused process like mediation.
There are couples who, for various reasons, and based on the timing of their own lives, and their own schedules, and their level of urgency to get their divorced processed, maybe their divorce spans three years. Is that common? No. Is three months common? No. So, my best guest of a range (and don’t hold me to this) is roughly nine months to two years.
Factors Impacting How Long Your Divorce Takes
What I want to clarify for you that I observe are some of the factors that impact how long a divorce takes to resolve. Again, I can’t tell you for your particular case, but what I can speak to is what the different factors are that will impact how long your case takes to resolve.
· How Many Issues Are There?
The first factor to think about is how many issues do you have to resolve. Is your divorce a case where you don’t have kids, you’ve been married for two years, you’ve kept your finances completely separate, and that’s how you intend to resolve them? It’s what we may refer to as a “walk-away.” You’re keeping your stuff, your spouse is keeping his or her stuff, and there just aren’t that many issues to resolve.
Or, in contrast, is this a case where you have kids and you need to deal with custody, and child support, and you need to deal with spousal maintenance, because one of you has been home with the kids for ten years and not have been in the workforce, and would not be able, even with child support, if that parent were the custodial parent, to pay for their own expenses, at least, for a period of time, and you have a ton of property to divide, and different assets, and they’re complex in nature? That’s case with a lot more issues. That’s a case that, generally speaking, will take longer to resolve than a case between a couple who has only been married for a couple of years and doesn’t have kids or really doesn’t have financial issues to resolve.
· How Aligned or Far Apart Are You?
A second really important element that impacts how long your case takes to resolve is how aligned or how far apart you and your spouse are on each of the issues that you have to address in your divorce.
You may have a case where there’s really only one, from a legal perspective, one issue of significance to resolve. Say, you don’t have kids, but you do co-own a house. That’s the only asset of significance that you and your spouse have, but you are diametrically opposed on what you want to do with the house. Maybe you both want to remain in the house, for instance.
That case could take longer to resolve than a case between people who have kids and have to resolve custody, and child support, and even spousal maintenance, and property division, but they’re pretty much on the same page on the various issues. So, again, how aligned you are on the issues or, in contrast, how far apart you are, is really going to impact how long your case takes to resolve.
· How Willing Are You to Compromise?
Another really important element is how willing each of you is to compromise on issues. Of course, you’re going to come to this process with different preferences, different opinions about what the right resolution is. You’re different people. That’s par for the course. But, how willing each of you is to slide off of that particular opinion or position and meet somewhere in the middle with your spouse is going to, either positively or negatively, impact how long your case takes to resolve.
I would actually add to that that, in my observation, people’s willingness to compromise can change over time, in both directions. Generally speaking, I think that if people are in a process that supports them in working towards settlement, they become more willing to compromise over time. However, there can be a negative impact from the divorce process that you’re in, if it’s very polarizing of you and your spouse, and you may become more entrenched in your particular position or your opinion over time and become less willing to compromise.
So, the more willing you both are to compromise, the faster your process will go and, vice-versa, the less willing to compromise, the slower the process will be. I’m speaking, of course, in generalities. There are exceptions to this, but that’s what I see across many cases.
· How Much Time Can You Devote To Your Divorce?
Two other elements that will impact how long your case takes to resolve are how frequently you meet and how promptly each of you can come back to, when you walk away with particular homework items, say, you’re supposed to come back with your last three years of taxes, how quickly you’re able to turn that around.
Listen, everybody’s busy. You, probably, you may have a job and a million other responsibilities that you need to take care of, in addition to creating a budget for yourself or putting together PDFs of your last three years of tax returns, or getting your last pay stub, whatever it is that you’re working on. But, if it takes you two months to put something like that together versus two weeks, your process will elongate accordingly.
The one distinction I do want to make is that the initial elements that I talked about – the number of issues you have to resolve, how aligned or not aligned you are on those issues and how willing you are to compromise on them – those impact the total number of hours, the total amount of time that your case will take to resolve, which directly impacts the cost of your process. Because divorce professionals bill by the hour, the amount of time your total process takes in hours is equivalent to or is directly proportional to the cost of the process.
The last two elements, though – how frequently you meet and how promptly you’re each able to turn around different homework items – those more impact, rather than total hours, cumulative hours, that it takes for you to be divorced, they more impact the total timeline along which your divorce process runs.
Let me make a distinction. You can have a mediation process that does not take a high number of total hours and thus doesn’t have a high total cost, but for a variety of reasons, including the spouses maybe can only meet every three months, and it takes them a long time, because of their other obligations in their lives, to come back with, say, (do their homework assignments, basically), to come back with their budget or to come back with documentation on a certain issue, you can have a mediation that takes two years to resolve, but isn’t very expensive, by virtue of the fact that you don’t meet frequently, and it takes a long time to turn around different homework assignments in between meetings.
At the same time, you could have a mediation process where you’re meeting on a weekly basis, you’re both turning things around very quickly, but you have a huge number of issues to cover, and you have to meet weekly for a period of three months, and you’re meeting for three hours at a time, and that’s an expensive process.
The bottom line is that I truly don’t know how long the divorce process will take, or how much it will cost you. There are divorce processes that are completed for $5,000 and ones that cost $500,000, and you will likely be somewhere in between there. Likewise, there are processes that take four or six months to resolve and three or four years to resolve, and you will likely be somewhere in between there.
But, I think the thing that’s maybe more productive than trying to give you a prediction that’s, not dubious, but based on guess-work at best, the thing that’s more productive for you to focus on is: What can you positively impact in your divorce process in terms of keeping the cost reasonable, and keeping the process from becoming interminable?
You can impact how willing you are to compromise, how frequently you meet, whether it be in mediation sessions, or in collaborative negotiation sessions, or settlement negotiation meetings, how frequently you meet, and how quickly you respond to your mediator or attorney’s “assignments” for you.
Your attorney may have, in a settlement negotiation, may ask you to think about: Do you prefer to stay in the house or do you prefer to sell the house? Based on how quickly you respond to your attorney… This is, obviously, not to rush consideration of something so important, but you’re in control of whether you put things in place to think about that issue more promptly or you don’t think about that issue for several months and don’t get back to your attorney with a response for several months. That will impact how quickly your process is resolved versus not.
What To Prioritize In Choosing Your Divorce Process
I want to add a word of caution there because, let me recognize, that divorce, as a process, is more expensive and more challenging than anybody would like it to be. It’s not a walk in the park for anyone. No one wants to go through a divorce process. Even if you both agree that you want to end your marriage, the actual divorce process itself is not something that anybody relishes or looks forward to.
However, I caution you not to make your central goal for choosing a divorce process to find the cheapest and quickest process either.
The expense of the process, and the efficiency and productivity of the process, are critical for you to consider. Those are critical considerations in making your decision. Try to pick the process that is going to set you and your spouse up to negotiate the best possible agreement that’s going to be the best structure for the two of you to be able to work through your differences.
That process is the one you want to select, even if it may be – as this happens often between, say, a mediation or a collaborative law process, collaborative, generally, is slightly more expensive than a mediation process. If that’s going to be the process that will best serve both you and your spouse, it’s worth it to choose that process over a slightly less expensive one that might not serve you as well.
Why? Because, as we’ve said before, or as I’ve said before and you’ve heard me say before, this process, this negotiation of your divorce, addresses issues concerning your finances and your kids. And what more important issues are there outside of, maybe, your health?
You don’t want to shortchange yourself in reaction to the fact that, admittedly, the divorce process for everybody is more time-consuming, and challenging, and expensive than they would like it to be. So, really try to keep your eyes on the prize. When you’re assessing the divorce process that you want to be in, really keep focused on the process that you think will best serve you and your spouse in bridging your differences and in coming up with the settlement that is really best for both of you going forward.
That is it for Episode 9. I really hope that was helpful for you. We are going to turn, in Episode 10, now that you’ve got a sense of divorce process, we’re going to look a little bit more closely at the prospect of hiring a divorce professional, whether that would be a divorce mediator or a divorce attorney. That’s a big, important decision that comes up at the very outset of a divorce process, and I want to help structure the way that you might approach it and think about it so that you’re best set up for success in this process. So, thank you so much for tuning in and I will look forward to speaking with you next time.