Divorce Options: Three Approaches for Couples

By Anna Krolikowska, JD

Divorce is rarely easy. When most people think of divorce they imagine protracted fighting between the couple and between the lawyers. While many divorces are hard-fought some are not.

A couple working through a divorce may find that this is one of the hardest, most trying experiences of their adult life. The dissolution of a marriage involves much introspection, emotion, and consideration of every element within the marriage and family that’s impacted. Yet there are options for divorce, and it is possible that one approach might be better for a couple than another. Though there are definitely different ways to get divorced, three stand out as worthwhile options to consider. Which one is right for you and your spouse? It depends on your circumstances.

1. Perhaps the approach that is most familiar to people is a traditional litigated divorce. Each spouse retains legal counsel and the two “teams” work through the negotiation of the dissolution of the marriage. Some of the proceedings take place in a courtroom before a judge who decides the various factors that need to be considered. Often this is the best choice when one, or both of the spouses is struggling with the notion of the divorce, refuses to consider alternative dispute resolution options, like mediation or collaborative process, or when physical or psychological abuse is present. Sometimes one spouse is in denial about the prospect of divorce and the only way through the process is by using traditional litigation. Sometimes the spouses are unable to make the decisions, and need the judge to decide. In its most litigious form, this is the divorce depicted in the movies “War of the Roses” and “Kramer Vs. Kramer”.

2. Some couples arrive at the decision to divorce but want some flexibility in the process. Mediation can be a good option for these couples. Mediated divorces are unique in that a trained mediator guides the decision-making and communication between the spouses. Generally speaking attorneys are not present during the mediation sessions, although there is an exception to every rule. Since the mediator is a neutral hired to help the couple arrive at an agreement, the mediator cannot prepare the legal settlement agreement which will be entered in court to finalize the divorce. Therefore, it is common to see at least one spouse represented by an attorney. It is important to note that divorcing spouses have conflicting interests, and when only one attorney is involved in the case, he or she represents one spouse, and the other spouse represents him or herself. Of course, ideally each spouse will be represented by, or at least consult with, an independent attorney.

3. A growing area of divorce is Collaborative Divorce, sometimes referred to as Collaborative Process. This “kinder, gentler” approach to divorce offers great flexibility and confidentiality to the divorcing couple. In many cases the process begins with a spouse retaining a collaboratively trained attorney to represent him or her in the collaborative process. The collaboratively trained attorney can help her client prepare for a conversation with the client’s spouse where the possibility of the collaborative divorce is introduced, as well as educate her client about the collaborative process, and collaborative professionals, who depending on the complexity of the case, the spouses wishes, and their budget for the divorce process can include collaboratively trained attorneys, coaches, a child specialist (if there are minor children involved), and a financial neutral. The collaborative process is driven by the goals and concerns of the divorcing couple rather than merely by the requirements of the Illinois statutes or scheduled court dates. Moreover, since the divorcing couple arrives at their settlement agreements in a series of meetings, not in a courtroom, they have the flexibility and the support of the collaborative team to confidentially undertake the effort of dissolving the marriage, and structuring the best possible settlement for their family. At the outset of the collaborative process the couple agrees to fully and freely exchange financial information, as well as that in the event they are unable to reach an agreement, that the professional team will be “conflicted out” and that the couple will need to hire new attorneys to represent them in the traditional litigated divorce. The presence of mental health professionals (coaches, child specialist), ensures the clients have the support needed to focus on the process, and their future goals, and can work through their differences in a far gentler manner than via traditional litigation. In most collaborative process cases, only once everything is agreed upon and settlement documents have been signed, is the final divorce decree entered in a court of law. This approach gives a family incredible privacy, greater control over the possible outcome, and an opportunity to craft a future that is based on their particular goals and needs, rather than a cookie cutter approach.

Couples have options when it comes to divorce. Not all options will be suitable for all couples. This is very good news. Though divorce is often painful, these options allow couples a way to move on without needlessly hurting each other, or their children. If you, or someone you care about, is contemplating divorce, it is important to educate yourself about the divorce process, and all available options. After all, this could be one of the most important decisions of your life.

Anna Krolikowska is an attorney in private practice in the metro-Chicago and North Suburban Chicago areas. She is a collaboratively trained attorney and a Fellow of The Collaborative Law Institute of Illinois. Within her law practice Anna works with clients using the collaborative process, mediation, or the litigated approach. To learn more about which approach might be best for you contact Anna at anna@kandrfamilylaw.com, or (847) 715-9328 to schedule a consultation.