I was recently afforded the opportunity and privilege to speak on attorney Audrey Thomas’s radio show, The Empowerment Hour, which airs every Wednesday night at 11 p.m. est. on 93.5...
DIVORCE OPTIONS IN NEW YORK
In New York, before a Judge will issue a final Judgment of Divorce, all issues regarding distribution of marital assets and debts, child-custody, child-support, and spousal-support, must be resolved. There are several ways to resolve those issues and each option has both benefits and shortcomings. Choosing a divorce option that best suits your needs and interests is crucial since it can end up saving you time and money.
1. Do-It-Yourself Negotiation
The “Do-It-Yourself” Negotiation is exactly as it sounds. Spouses do it themselves by negotiating the terms of their divorce and deciding who needs and who wants what. If you and your spouse are able to address theses issues amicably, this approach is extremely cost effective. The major downside to this approach is often times, either both spouses, or worse one spouse, does not possess the legal knowledge to adequately protect their rights and interests. In that instance, retaining an attorney if even for the limited purpose of advising or reviewing the terms of your agreement, may be helpful and is strongly recommended.
2. Limited-Scope Representation
Spouses may elect to have an attorney assist them rather than to retain them for full-scope representation. Limited-scope services include document preparation, document review, and/or legal counseling or coaching. This approach allows spouses the benefit of an attorney without the cost of a full-representation arrangement. While this approach is less costly than many of the other options, it may not be suitable in all instances, especially those with higher assets.
Divorce mediation is a voluntary process where a third-party neutral helps spouses negotiate with one another by facilitating communication between them and addressing the individual needs of each spouse and their children. Divorce mediators are generally familiar with divorce law and act as an agent of reality throughout the negotiation stage of the mediation. Generally, mediation provides a wide-array of benefits to spouses. It saves time, money, is considered to be the less stressful option when compared to litigation, and a person’s schedule is affected minimally. In addition, in comparison to negotiation, because many divorce mediators are generally familiar with divorce law, spouses receive useful legal information to protect their rights and interests. In addition, parties may bring their attorneys to the mediation. A downside to mediation is the potential for impasse, which occasionally happens where an abnormally high level of contention is present.
Arbitration is a voluntary process where a third-party neutral acts as a judge in your case. Given the authoritative role of an arbitrator, it is important to hire an arbitrator who has extensive experience and knowledge in divorce law. The benefit of arbitration is having someone decide your case without having to go to court. It is also a more private and convenient forum for spouses to have their cases heard. The downsides to arbitration are, one it may be more costly than the “do-it-yourself” or mediation approach, and two, because not all issues can legally be arbitrated this approach does not promote finality.
4. Hybrid Approach
There is a hybrid approach whereby some issues may be resolved through mediation, while others through arbitration. This process is typically referred to as “Med-Arb” or “Arb-Med” depending on the approach. This approach offers a wide array of options for parties because unlike strict arbitration, all issues can be addressed. A downside to this approach is that if all issues are not resolved then the parties will need to litigate outstanding issues.
5. Collaborative Process
A process where third-parties help to facilitate communication and negotiation between spouses. This process is similar to mediation in that you may be provided with the assistance of third parties such as mediators, attorneys, accountants, psychologists, financial planners, and investors, but differs from mediation because unlike mediation, the collaborative process requires you to enter into a participation agreement setting forth the terms of withdrawal. In addition, the attorney who was representing you during the collaborative process will not be allowed to represent you should certain issues or the entire case proceed to litigation.
Litigation is an adversarial process where each party obtains independent counsel to either negotiate the terms of their divorce or go into court and argue their client’s position. Litigation can be extremely time consuming and on average takes anywhere from 1 to 3 years. Litigation can also be costly ranging anywhere from $15,000.00 to $100,000.00 in legal fees.