I would like to take a few minutes to talk to you about some of the “new” developments in the area of divorce. I refer to this as “new” because a lot of the concepts that are being discussed and proposed are not, in my opinion, really new. They are simply just a different way of doing the same thing.
Currently, there is a lot of discussion about mediation and how using mediation is a new concept or a way of addressing a divorce that is different or unusual. This is simply not the case. Here in Livingston County the Circuit Court Judges who do the divorce docket not only allow mediation but in some cases, mandate it. We have been mediating divorce cases for a long time. I cannot remember one of my divorce cases that were not at least scheduled for mediation by the time they were resolved. There are many qualified attorneys here in Livingston County who do divorce mediation.
There is now talk about the “collaborative practice” approach to doing divorce. I am not going to discuss all that is involved in this process, but in my opinion, this is not just something that can be done in what is now referred to as the “traditional divorce” case. It has been explained as a process that occurs before filing for divorce, but it still involves parties having attorneys, as well as the use of experts. It has also been described as a way of “keeping your personal business your own business, and not making it public.” The truth is all of these things can be accomplished in the traditional divorce case too, and it may be more beneficial to file for a traditional divorce. Here is why I say that.
In a traditional divorce setting, the parties can work out an agreement before they file the divorce case and just have it signed as a judgment of divorce after waiting for the appropriate period. I am not saying that there is never a case for a “collaborative” divorce, I am just saying that most (if not all) of the advantages proposed by a “collaborative” divorce can and are done in a traditional divorce.
Another big advantage of the traditional divorce is that the court keeps the case on strict timelines. If parties are not able to resolve the case, the case is, at least, in the process to get to the court promptly and get the case decided. One of the biggest complaints I hear about the divorce practice is that it takes too long, and the parties want to get it over and get on with their lives. It would make sense to pursue a traditional divorce if time is a factor for you.
One of the biggest drawbacks, in my opinion, to the “collaborative practice” is that if either party wants to remove the case to a traditional divorce neither side can use the attorney they were using in the collaborative process: they have to hire new attorneys and educate the attorneys as to where the case stands. That will surely cause a delay in your divorce.
In the traditional divorce, a complaint is filed and the other party is served. That party files an answer to the complaint. The court issues a scheduling order when the case is filed. The parties at this point have the option to meet with their attorneys to resolve the case and discuss the issues. If it is a divorce with children and the parties are not in agreement on the issues of custody, support and parenting time the matter may be referred to The Friend of the Court. This can be for an early intervention conference or a referral on the issues of custody, support and parenting time. The case is then scheduled for a pre-trial.
It is during this pre-trial that mediation comes into play. It can be either before or after the pre-trial. Mediation is a non-binding process to resolve the issues in a less formal setting with the use of an experienced attorney who is familiar with the court process and the law. If these efforts are not successful in resolving the case, the matter is set for trial and the Judge will decide the issues of the case.
This is just a brief overview of the divorce process and how it can affect you and your family. Divorce is a very stressful situation for everyone involved. It affects the people who are getting divorced, their children (if they have children), their family, and friends. It is important to get the case decided quickly and fairly and provide the parties with certainty. You must hire an attorney who is experienced in divorce law as well as the process in the court where your case is filed.
Bill McCririe, McCririe Law PLLC