Alternatives to a Litigated Divorce in MontanaMarybeth Sampsel
When I sit down with a client for the first time, very few say to me, “Marybeth, I want this to be expensive, take forever, and be a generally horrible experience for all involved.” Instead, most clients hope their divorce can be like ripping off a bandaid – quick, easy, and with minimal pain. While we cannot always accomplish that goal, the way we start a case can have a dramatic effect on the cost, time frame and overall experience.
Before diving into divorce litigation, consider your alternatives to “regular” divorce litigation. If you have an ex that wants to make it a less painful process, you may find that you can get in and out of the divorce process with minimal scar tissue.
Divorce can be very complicated, both legally and financially. If not handled correctly, you can make mistakes that will have major consequences. Generally speaking, I discourage most people from trying to do their divorce completely on their own. It is well worth the few hundred dollars it will cost to at least sit down with an attorney to evaluate your case.
However, there can be cases where a Do-It-Yourself divorce makes sense. For example, if you’re marriage was very short, you did not accumulate property or debts during your marriage and you don’t have any children. In other words, if the only thing you are trying to handle is ending the marriage, a Do-It-Yourself divorce might be a possibility.
In divorce mediation, rather than the parties retaining attorneys to fight, a divorcing couple works with a neutral mediator who helps both parties come to an agreement on all aspects of their divorce. The mediator may or may not be a lawyer (although I suggest you utilize a lawyer). The mediator MUST be a neutral party and cannot advocate on the behalf of one party or the other. They may, however, bring up issues you and your spouse hadn’t thought about and suggest that you and your partner work those issues out in mediation.
If mediation works, it can be fast, effective and affordable. If it does not work, you may have spent time and money that would have been better spent on litigating your case. Mediation is a good option in a large number of divorce cases. If you have concerns about disclosure of assets/liabilities or there are abuse concerns, mediation probably isn’t for you.
If you do mediate, make sure that you have an attorney review any agreement BEFORE you sign it. Once it is signed, it may be too late to make changes.
Although not particularly popular in Montana, collaborative divorce can be a great idea. Basically a collaborative divorce is when a couple agrees to work out a divorce settlement without going to court. During a collaborative divorce both parties retain their own attorney. Instead of simply advocating for your position, the attorneys will assists their client in negotiating a settlement agreement. The collaborative process may also involve other neutral professionals such as an accountant or financial planner, who will help the parties work out agreements on financial issues. You may also see a counselor or guardian ad litem involved to assist the parties in reaching agreements on parenting.
A collaborative divorce generally includes an agreement that the attorneys involved will only assist the clients during the collaborative process. In the event an agreement cannot be reached and limitation ensues, the attorneys may have to withdraw and the parties may have to start from scratch with new counsel.
If a divorce is particularly heated, the collaborative process might not be very successful. When financial issues are complex or there is a lack of disclosure, collaborative divorce may not be the thing for you.
In general, if there are concerns that your spouse is hiding assets/income, if there are abuse concerns or a history of domestic violence, or if there are drug or alcohol issues, see an attorney before initiating one of the divorce litigation alternatives. As always, ensure that you speak with an attorney before you sign on any dotted line.