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Money Talks: Alls Well That Ends Well-Divorce Options to Work Things Out.
6/1/2005
Today's Charlotte Woman
By Andrea Cooper
You and your husband want a divorce, but you don't want a knock-down drag-out brawl. If you want to end your marriage and remain cordial, there is an alternative to a lengthy and acrimonious trial in the form of alternative dispute resolution.
Separating spouses can choose ADR to sort through knotty issues such as custody, alimony and property division. Though you'll ultimately have to file a lawsuit to actually receive a divorce, ADR allows you to resolve major issues early in your separation, long before your divorce becomes final.
"If you can talk civilly with the other side, ADR is a great option," says attorney K. Mitchell Kelling, a certified family law specialist with the law firm of Horack Talley in Charlotte. "It's typically quicker and cheaper that a lawsuit and you've still got the option of a lawsuit if it doesn't work out."
The ABC's of ADR
ADR falls into three categories: mediation, arbitration and collaborative law. Mediation is a process of negotiating to help the two sides reach an agreement. A neutral third party acts as a mediator and aids the negotiations. The attorneys select the mediator. Mediation gives the divorcing parties more control because they hammer out an agreement themselves. It's also more likely both parties will abide by the decision because they created it, instead of having a decision imposed on them.
In arbitration, both parties and their attorneys agree to let a neutral third person hear them out and make a binding decision. When you use arbitration, you essentially hire your own judge. This method benefits couples that are polarized, but would still prefer ADR to a trial.
When you choose collaborative law, you negotiate a separation agreement, and further agree that you will never sue your ex. Should you change your mind and decide to sue at a later date, neither your original attorney not your husband's can be involved. Since you'd have to start all over again with new attorneys, there's a financial incentive to keep your word - and for your ex to keep his too.
Damage Control
Beth Hodges, Gena Graham Morris and Kary Watson, family law attorneys who also work for Horack Talley, note an increasing number of clients who are asking about ADR to ease some of the trauma of divorce. "Even if you don't resolve all your issues through ADR, you might resolve some "says Watson.
Hodges agrees. "In nine cases out of 10, if you have children you owe it to them to try to work out the details through ADR. A trial leaves scars no one anticipates.
Finding the Best Solution
How should you choose which form of ADR is right for you? Each offers advantages and disadvantages. Mediation is a good option if you feel your spouse is trustworthy. "It's a more dignified process than a trial," says Morris, particularly when children are involved. You won't have a perfect stranger with limited information about your family telling you how to raise your kids."
Collaborative law helps you control your own destiny if "everybody's playing above board," says Morris. But if your spouse is vindictive, it's not a good choice." Collaborative law can get expensive if it drags out into multiple sessions because one side or the other refuses to cooperate. If there is a substantial power imbalance between spouses, this form of ADR can be risky. Like mediation, collaborative law requires trust.
Arbitration is valuable when you feel you need an outsider to make the decisions. If, for example, you and your spouse are having trouble agreeing on custody issues, taking the dispute to arbitration can settle the matter.
Trust and Track Record
To find an attorney experienced in ADR, start by looking for a family law attorney, then check credentials. Ask if the attorney is a member of the family law section of the Mecklenburg County and North Carolina Bar Associations.
Trust and confidence in your attorney are key, so choose an attorney with whom you feel comfortable. Though most attorneys charger for an initial consultation, if you have to hold two or three introductory meetings until you find one you like, it's money well spent. Ask friends, work colleagues, and other professionals for referrals. The North Carolina Bar Association runs a lawyer referral service, which can be a helpful resource (800-662-7660).
Though you might want to save time by using the Internet, read divorce information there with a skeptical eye. "Don't download and complete forms you find on the Web before meeting your attorney," Watson warns, "unless the attorney has specifically asked you to do so. Plenty of these forms aren't applicable to North Carolina law."
Divorcing couples typically see the divorce as the end of the relationship, but "it ain't necessarily so" - especially if you have kids. However ADR can make the process much easier for you, so you can get started sooner with the rest of your life. TCW