Fortunately, families seeking to solve problems with legal remedies such as separation, divorce, custody arrangements and adoption have more options today than even in the recent past. Below you will find descriptions of three of those options and my perspective on the advantages and disadvantages of each. I explore each of these options with my clients to determine which approach is best suited to their needs and the situation they are working to remedy.
Traditional Approach
This process begins when one party sues another in Family Court. The party filing the suit is asking the court to resolve the family dispute. Traditional litigation involves the use of formal legal procedures such as the filing of a complaint, the filing of an answer to the complaint, Temporary Hearings and Temporary Orders (where the court issues a temporary order dealing with issues like alimony, division of marital property and custody on a temporary basis pending a final hearing or settlement), discovery (the formal process of collecting information relevant to the action such as the production of documents, the inspection of property and the taking of depositions), and Rules to Show Cause (when the court is asked to determine if a party did not comply with a previous order of the court). This approach is a "war." The two sides are clearly opposing one another and their attorneys act as hired gladiators. The communication is formal and goes from one client to his or her attorney, from that attorney to the other client and vice versa.
In South Carolina, a person can sue their spouse by alleging marital fault, such as adultery, habitual drunkenness or drug use, abandonment, or physical cruelty. This is called a fault based divorce. If a person proves to the court that their spouse has committed marital fault, it could affect an award of alimony, child custody and the distribution of the parties' marital property. In order to obtain a "no fault" divorce in South Carolina, the parties must live separate and apart for one year.
Advantages - It is a formal process and the rules are very clear, if complicated. When there is an uncooperative, difficult opposing party, this type of formal process can be necessary to complete the resolution of the case. For example, in a divorce case, when one party has committed misconduct by disregarding a previous court order such as the payment of temporary child support or alimony, the court can force offending party to correct the situation. If a party proves to a judge at a trial that their spouse has committed marital fault, it may effect the payment of alimony, child custody, and the division of the parties' marital property. The judge may even award attorney fees to the non offending spouse. Much depends on the nature of the relationship between the parties', marital fault, ages of the children, size of the parties' estates, and the relative ability of the parties to earn income. Depending on the nature of the case, the desire of the client who has filed the lawsuit, and the relative fault of the opposing party, the litigation process could be highly beneficial in terms of child custody and financial issues.
Disadvantages - Litigation is very costly and time consuming. The more battles that are fought, the higher the legal fees go. In addition, experts can often be used to investigate issues and prove various points, all of which add to the cost of the case. Another cost of litigation is the emotional cost. Litigation of family law cases does not include any process for resolving emotional issues. These issues are often made worse in the adversarial system and often motivate more battles than are necessary. In the traditional approach, final decisions are made by the presiding judge rather than by the parties if the parties are unable to reach an agreement prior to trial. This process often leaves parties feeling unconnected to and unsatisfied with the process and result. When the litigation is finally decided by a judge, or if the parties reluctantly agree to a settlement, the emotional healing process can take years, and, in some cases, may never occur. This can be particularly disastrous to families with children who must continue to relate to one another for the remainder of their lives through holidays, graduations, and their childrens' activities.
Mediation
For many years, mediation was the only alternative to litigation in family law cases. Mediators generally must complete an extensive 40 hour course prior to becoming certified. They meet with the parties in an attempt to resolve all issues in the divorce. It is a diplomatic approach which includes direct communication among the parties. It can be held in one or more sessions and is often entered into after litigation has begun. Depending on the mediator, attorneys for the parties may or may not be present during the mediation. Once the parties have reached an agreement, an agreement can be drawn up and presented to the court for approval.
Advantages - Mediation can decrease the potential cost of litigation substantially. The parties share the cost of the mediator and save time by making the process more efficient and communication more direct. All issues that are being litigated by the parties are completely resolved in a non-adversarial format. Mediators facilitate an agreement in which the parties fully participate, thus the parties often feel more satisfied with the process and feel a sense of ownership of the agreement.
Disadvantages - Since most mediation occurs after litigation has begun, the parties may be hardened in their positions or at least in the level of their willingness to compromise. If attorneys are not present during mediation, and a legal issue comes up, the mediation may have to be interrupted for a legal consultation, because mediators are not permitted to give legal advice. Mediation can also be effected by a spouse who is overly controlling and dominant, essentially coercing their partner into an agreement which is less than they could have received by other means. When attorneys are present during mediation to protect their clients interests or to provide legal advice, the cost of mediation increases.
Collaborative Approach
Collaborative Family Law is an interdisciplinary process in which parties and their attorneys work cooperatively to negotiate fair settlements without court intervention. Collaborative lawyers are trained and certified in the collaborative process. The process uses "4-party conferences" involving clients and their attorneys. Unlike mediation and litigation, the collaborative process begins before any legal proceedings are initiated. The goal of the collaborative approach is to resolve all issues involved in the divorce. The attorneys are present during every phase of this process work to assist their clients in reaching an agreement while also looking out for their best interests. Sometimes a team approach is used to assist in reaching a timely and cost-effective settlement. This would happen when professionals such as therapists and financial consultants, also trained in the collaborative process, are utilized to assist the parties reaching an agreement on custody and equitable distribution issues. When one or more professionals are used their cost is shared by the parties and their role is to work towards an equitable resolution of the matter. They will not be taking sides. Additionally, collaborative lawyers will also use mediators and arbitrators to help resolve certain issues if the parties have reached and impasse. Once all the issues of the dissolution of the marriage have been resolved by agreement, a formal agreement is drafted, legal proceedings are filed, and the parties go to court one time to have the court approve their agreement.
Advantages - The collaborative approach begins prior to legal proceedings being filed in the Family Court. As a result, the parties are not "hardened" into their legal positions and can approach the matter, as unpleasant as it may be, with a relatively clear head. Since the parties will not be litigating the case in court, the collaborative process can save considerable amounts of money in relation to the tradition litigation process. Furthermore, the client is in charge of the process. The client is present at every settlement conference. Their attorneys are present to give them legal advice and assist them in reaching an agreement, and the attorneys will not be preventing communication between the parties. As a result, clients generally feel that they own the agreement that is the direct result of their negotiations. As a result, the collaborative process is much less emotionally stressful on the family. Additionally, the focus of the collaborative approach, when children are involved, is on the children who must have a strong loving and caring relationship with both parents. Those involved in the collaborative process are always mindful of the fact that the family will remain a family after the divorce is final regardless of their living arrangements and the distribution of their material possessions.
Disadvantages - The key to the collaborative process is the participation agreement. The participation agreement requires that the attorneys for the parties must withdraw from representation should the parities reach an impasse and that any and all professionals used in the process are forbidden to appear in court on behalf of either party. This means that if the collaborative process should break down, the parties must hire trial counsel and begin their case all over again, thus increasing their costs. Furthermore, one of the parties may not agree to the collaborative approach, making it unavailable to the party desiring to proceed collaboratively.
