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The Three Approaches to Divorce
As a divorce attorney, I have found that many people facing divorce are unfamiliar with the different divorce options potentially available to them.
Each approach is designed for different needs. No approach is inherently wrong but matching the appropriate approach to the appropriate circumstance can mean getting through a divorce with the least expenditure of emotional trauma, time, and money.
There are three approaches to divorce - Adversarial, Collaborative, and Mediation. They share the same objectives: obtaining a Massachusetts divorce and getting resolution on issues surrounding children, property, and finances. While all three end in divorce, none use the same method to reach resolution on key issues.
The Adversarial Approach
In Adversarial Divorce, each spouse has their own lawyer who is obligated to advocate for their best interest. If parties are unable to reach agreement about children (if any), property, or finances, a trial will take place and a judge will issue a Divorce Judgment. A Judgment states what each party will give and/or receive. Adversarial Divorce is best suited for resolving deep-seated disagreement where there may be little trust between spouses, complaints of parental incompetence, or allegations that the other party is hiding assets.
In Adversarial Divorce, each lawyer zealously advocates his client's interests and must be prepared for trial if necessary to protect those interests. Because of the nature of the process, Adversarial Divorce is usually the most expensive in time, emotion, and money.
The Collaborative Approach
In Collaborative Divorce, each party has their own attorney who is specially trained in the practice of Massachusetts Collaborative Divorce.
Both attorneys and both spouses have one goal, the collaborative resolution of all issues without the threat of trial. Both attorneys collaborate in gathering all information necessary to resolve disputed issues. If one party decides to convert to Adversarial Divorce, both attorneys must withdraw and the information they gathered cannot be used in Adversarial proceedings.
Collaborative Divorce is best for parties who trust each other and prefer to have their own experienced attorney advocating for their interests.
In Adversarial Divorce, a lawyer must always prepare for and be cautious of putting a client in a position that could be detrimental at trial. In Collaborative Divorce, without the threat of trial, each party is free to consider all options for obtaining a satisfactory resolution. In the Collaborative process, there is more freedom for creative problem solving. Collaborative Divorce is often the least expensive process since court appearances and delays common to mediation are avoided.
The Mediation Approach
In Divorce Mediation, divorcing parties usually do not have an attorney at their side but instead meet together with a neutral person called a mediator. With the mediator they attempt to resolve issues face-to-face. The role of the attorney in Divorce Mediation is to act as an advisor or consultant "on call" instead of advocating directly for their client. Rather than concentrating on legal positions, mediating parties will be guided by the mediator and encouraged by their attorneys to concentrate on "interests" rather than "positions." For example, your spouse's position might be that she/he is entitled to the van, therefore, you should get the sedan. If you disagree, only a judge can settle the dispute as to who is entitled to the van. In Mediation, the question is not who is "entitled" but rather what is the "interest" in the van. If your spouse wants to use the van to start a home-based business and earn an income, then you, realizing that you may be paying less support, may agree to give up the van.
Mediation sometimes takes longer than the Adversarial approach because the mediator must take great effort to answer the questions of each party. Since the cost and delay involved with court appearances are avoided, Divorce Mediation is usually less expensive than Adversarial Divorce.
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Divorcing couples in Massachusetts can divide their property on their own, or they can leave it up to the court, who will divide all the property equitably. When dividing marital property, courts consider such factors as the length of the marriage, the conduct of the spouses, the occupation and income of the spouses, their employability and the opportunity for each spouse to acquire property in the future.
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