When it comes to relationship breakdown, there are a number of divorce options for you to consider. Divorce is not a ‘one-size-fits-all’. Every couple has their own story and context contributing to the reasons for divorce. Each marriage is unique and each divorce will be the same. When considering divorce options, remember that it must suit you and your circumstances. Your divorce may be a ‘War of the Roses’ style mudslinging match, or it may be Gwyneth Paltrow and Chris Martin’s ‘conscious uncoupling’.
What Are Your Divorce Options?
There are four main divorce options to think about when proceeding with a divorce. Any of them can get messy and complicated, but you have choices along the way which can impact whether it is a peaceful process or not.
Option 1: Do-It-Yourself
Australia does have a do-it-yourself divorce kit. It’s $845 for the kit, but not suitable for many couples. It really is better to have a legal professional look over any documents before you sign because of the complexity of separation – you don’t want to make any mistakes. One scenario in which this may be suitable is if you have only been married for a few years, there are no children and assets can be divided easily. Both parties need to be willing and keen for a peaceable divorce for this to work, otherwise you’ll need to look to another option. The majority opinion though seems to be don’t do-it-yourself. Family law is complex and the decisions you make may not be in compliance with the law.
Option 2: Mediation
This is one of the major divorce options in Australia because the default in Australia’s family law cases is mediation. It encourages people to agree on arrangements without having to go to court. This is in contrast to the United States, where litigated divorce seems to be the default. This may be why we can have a skewed view that most divorces are acrimonious. Our lens of divorce has been through American movies and television (not to mention celebrities on social media). We often have a choice as to whether the divorce is high-conflict or not and this is usually a no or low-conflict option.
Mediation is done privately, as opposed to a courtroom, and the focus is not on ‘winners’ or ‘losers’. Mediation involves you and your former spouse sitting down with an independent third person (a mediator) to attempt to resolve issues in dispute. This usually helpful process does not necessarily require that you and your former spouse face each other in same room. The mediator may move between you in separate rooms. It can cover all divorce issues such as parenting arrangements, child support, property settlements and spousal maintenance.
When mediation is unsuccessful, it is likely that court proceedings will ensue. Before commencing Court Proceedings concerning children the parties are usually required to first attend mediation (if they haven’t done so already), which is also known as Family Dispute Resolution. Attending mediation is not compulsory when the parties have reached an agreement and are applying for Consent Orders. Nor is it compulsory in the case of family violence or the matter is urgent.
Option 3: Collaborative Divorce
Collaborative divorce, like mediation, also aims to keep divorce proceedings out of court. Collaborative practice can involve a whole range of professionals assisting the divorcing couple in resolving any disputes ‘collaboratively and cooperatively’. This group approach might include psychologists, financial planners, counsellors, mediators and the family lawyers. Each party will engage their own lawyer who practices collaborative law. The couple usually enters an agreement to not commence court proceedings. If one does so, then they will then be represented by different family law lawyers in court.
One of the key differences between mediation and collaborative law is that mediation requires just one mediator between the divorcing couple helping them to make decisions and collaborative divorce requires two – each lawyer advocating their particular client. Mediation is often faster and costs less. Both aim to keep conflict low and out of court. While mediation is the better option, it’s not always your better option. Collaborative divorce is one of the best divorce options if you can’t do mediation, but still want to stay out of court.
Option 4: Litigated Divorce
Litigated divorce has been seen as the ‘traditional’ option, but is adversarial from the start. Many divorces do not proceed amicably and so this is the only way forward when mediation breaks down. When couples cannot agree on settlement terms then a litigated divorce follows. Sometimes this may be your only option, but it’s not for the fainthearted. It can often go on for months and sometimes years and can cost an astonishing amount in legal fees. After all the fighting, you may not get the outcome you’d hoped for.
Weighing the Divorce Options
Don’t make a decision based on what you have seen others do. Making an informed decision about which of the divorce options you need should to be made in regards to your particular situation. If you have children, then you need to think about how these different processes may affect them. Exploring all options will help you to recognise which might be best for you and your family. If both parties are willing to negotiate then mediation might be the best choice. If the relationship with the other party is already very adversarial and emotionally charged then mediation attempts may fail and going to court might be unavoidable.
Even when the split is fairly amicable divorce can be a really hard time. It’s a good idea to surround yourself with a support network of people, friends and family, who will encourage you in your good decision making and dissuade you from making unhelpful choices. Whatever you decide, make sure that you’re comfortable with the professionals who are helping you. If you don’t trust them or feel that they’re not listening to you, then find someone else.
We always encourage and assist our clients to mediate – with a view to hopefully avoiding the emotional and financial costs of a court battle. Please contact us today for a free, 10-minute phone consultation with one of our experienced family lawyers.