Good Counsel: Understanding the Divorce Options for Your Clients

Couples facing divorce today, particularly in Minnesota, have a wide range of options available to them. Their choice about those options will likely have a major impact on their lives and, where applicable, the lives of their children.  Generally, these couples and individuals will need to get a more complete description of the process options from qualified attorneys.  However, it is common for them to rely on their therapists for a general overview of the process options and for appropriate referrals.

Clients are best served when their therapists and legal counsel can operate as a team, so that the information they receive is consistent and supports their ability to address the unique needs of their family.

Most therapists have at least a basic understanding of the process options that exist in our community, so that they can, at minimum, provide a general overview.  However, there is a great deal of misinformation that exists about the various options in our community, so it is worthwhile to review them briefly here.

Contradictory Needs?

Before outlining the various options, it is worthwhile to think about the specific needs of each client.  At the time of the divorce, most clients describe two critical needs that seem, at first blush, to be contradictory.

On the one hand, clients will often describe their need, or desire, to keep the divorce amicable, particularly if there are children involved.  Most people have a general understanding of how an adversarial divorce can be damaging to the wellbeing of the children and the mental health of the adults.  In addition, an adversarial divorce can get very expensive and is very difficult to control.  Consequently, most clients will have at least some desire to find a more amicable way to complete the divorce.

On the other hand, many clients facing divorce feel a strong need to feel protected; to have an advocate by their side to help them get the result they deserve, for themselves as well as their children. The fear and anger underlying the divorce issues generally fuels a strong desire for protection.  While it is important to remain amicable, clients do not want to accept a poor outcome that could create unnecessary burdens in their future.

The misunderstanding that many clients (and some therapists) have is that the desire for an amicable divorce and the desire for protection are not compatible. However, there are process choices that are designed to allow clients to achieve both.  In order to understand this better let’s look at each of the options available in our community.

For simplification, let’s start by looking at the two opposite extremes—going to trial on the one end and doing a divorce without any professional help whatsoever on the other.  Going to trial is very rare; less than 5% of cases ever get heard by a judge in a trial.  Moreover, even the 5% of the people who end up going to trial, do not generally expect to go to trial. The enormous cost of a trial, both financial and emotional, causes most people to eventually seek another option. Trials, of course eliminate almost all hope for an amicable result, in which the parties can work together after the divorce.  At the same time, trials provide very little in terms of protection since the decisions are ultimately made by a stranger. Consequently, very little time needs to spent explaining this option.

On the other end of the continuum, doing a completely “self-represented” divorce, without the assistance of lawyers or mediators of any kind, is designed to meet the client’s need for an amicable outcome without much regard for the need to be “protected” by outside professionals. The growing distrust of lawyers in our society has fueled a very significant growth of this option.  Clients often fear that lawyers will control the process and are willing to forego some protections to avoid the risk of having the lawyers “run with their case”. 

While self-represented divorces can work, foregoing all protection, particularly if there are children involved, can be extremely risky and can lead to significant post-divorce problems.  Therefore, most clients prefer to get some assistance. Therefore, the remainder of the divorce cases get resolved through one of the following processes:

  1. Negotiation with traditional attorney assistance
  2. Mediation
  3. Collaborative Divorce
  4. Working with only one attorney

In our next blog we will describe the those four process choices in detail.

Next: Understanding Process Choices

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