The 4 Types of Divorce and How to Know Which One’s Right for You
Let’s state the obvious and get it out of the way: Divorce is messy. It’s complicated. It’s painful. The not-so-obvious, in part, is this: when it comes to your method of divorce, you’ve got options. There are 4 types of divorce, that is 4 methods or ways to divorce. Which one’s right for you is something you and your Ex-in-waiting will have to weigh carefully.
The process of divorce can be as amicable or contentious as you make it.
It can also be as expensive as you let it become.
Remember, several factors will influence the type of divorce you choose. A short list of some of the biggest influences include:
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- Your and your spouse’s ability to communicate in an honest and respectful manner.
- The presence or absence of abuse and/or control issues in your marriage.
- How much money you have to finance a divorce.
- The presence of minor children.
- The simplicity or complexity of your assets.
- How informed you are about your rights and what you are entitled to.
- How comfortable you are negotiating without representation.
- Potential areas of contention.
- Your state’s (and even county’s) specific laws governing the dissolution of marriage.
- How long the divorce process will take.
The 4 Types of Divorce
This article will discuss the 4 types of divorce. Hopefully, the right option for you will stand out from the rest — at least as a starting point for understanding the journey ahead.
1.) DIY Divorce
Sometimes called “The Kitchen Table Approach,” or “A Pro-Se” or “Do-It-Yourself” (DIY) divorce, it’s exactly what it sounds like. Instead of hiring family law (or divorce) attorneys to handle the details of your divorce, you and your spouse do all the work yourselves. You download the paperwork, you file, and you complete the divorce paperwork, negotiate your settlement and custody agreement, and present your completed package to the court by mailing it in.
The benefits: by taking control of your own divorce, you can save thousands of dollars.
The drawbacks: you run the risk of not knowing things and not negotiating the best situation for yourself.
So, before getting excited by what sounds like a fast, easy, and cheap way to get divorced, it’s important to know one important criterion.
A DIY divorce is a no-fault, uncontested divorce.
Both of you must be in 100% agreement about the decision to divorce and how you will split things. (Read here to learn the difference between a contested and uncontested divorce.)
And, as odd as it may sound for spouses attempting to part ways, you need to communicate well and be able to reach agreements with relative ease.
You will, after all, have to navigate very complex matters like finances, retirement, division of assets and debt, alimony, custody, and tax implications.
You can complete a majority of a DIY divorce online. Be forewarned, however, that there are extensive forms that must be completed accurately, or they will be rejected by the court.
Here are Investopedia’s 6 picks for the best online divorce services (2022).
Remember: You Still Need Experts!
The fact that you’re handling a divorce without lawyers doesn’t preclude the need for professionals or expert advisors.
A Qualified Domestic Relations Order (QDRO) attorney, for example, will be necessary if one of you has retirement funds that will be transferred to the other after the divorce. Or elsewhere, you might download divorce forms and take them to a divorce lawyer and ask them for help completing certain parts of the process.
And making use of financial advisors like CDFAs who understand how the money is impacted by divorce is always a wise idea if you wonder what to do with the marital home or you have significant real estate, assets, investments, and/or debt. Tax implications aren’t a friendly surprise, especially in the middle of a divorce!
It’s also not out of the question to need legal counsel for specific areas such as custody and child support.
But the divorce process itself remains uncontested… unless you and your spouse ultimately can’t negotiate a mutually agreeable settlement.
Are You Good Candidates for a DIY Divorce?
If you can communicate well and negotiate without getting emotional or vindictive, you may be.
You should both understand your finances and have your financial documentation well organized.
At SAS for Women, we think a DIY divorce for women is only viable if it’s been a short-term marriage, there are no children, and you have little assets and or debt. If that’s not the case, we recommend you be very careful with DIY—especially if your spouse is pushing you to do it. You may give away too much or not handle important issues that will severely impact your next chapter.
Are you wondering what else you could be doing? Get organized and directed by reading “The 55 Must-Do’s on Your Modern Divorce Checklist.”
2.) Divorce Mediation
Mediation is the “next step up” when it comes to negotiating and settling your divorce on your own (as a couple) and out of court. It’s not a DIY divorce; but, like a DIY divorce, it can be a more amicable divorce and a less expensive way to proceed with an uncontested divorce.
Some states require mediation as a precursor to litigation. So, always find out about your state’s divorce laws and residency requirements first when considering any type of divorce.
Otherwise, mediation is a voluntary approach to divorce that, if entered into and executed wisely, benefits everyone involved.
When it works well it involves less time and work on the side of lawyers and courts meaning less heartache, less waiting, and more money saved for you.
The process of mediation involves a specially trained, neutral mediator (who could be a licensed divorce attorney, financial advisor or therapist). The mediator helps you and your spouse work through the terms of your divorce.
Understand that the mediator cannot lean over and privately advise you or your husband. That would prejudice the mediator toward one or the other of you. So, bear that in mind. You are not getting advice on what would be smart moves for you as a woman in your negotiation. You are getting a facilitator who is helping you and your spouse complete the document.
The objective with this document is to be mindful of your state’s divorce laws as you resolve areas like the division of assets (do you know if your state is a community property vs. an equitable distribution state?), custody, and child support according to the wishes and agreement of you and your spouse.
Mediation: The Details
The benefits of mediation are numerous, assuming you and your still-spouse can approach the process with maturity and mutual respect.
By not hiring lawyers, you can save thousands of dollars – money you might need post-divorce.
It should be noted, however, that lawyers are not prohibited in the mediation process.
Consulting with a lawyer for guidance prior to mediation and even during the mediation process is actually a prudent step, assuming counsel supports the mediation process. Read more about consulting with a divorce attorney to support you in your mediation process here.
Best case scenario, mediation is done in a comfortable office (and sometimes online, if desired), with both spouses and the mediator present.
Once you reach an agreement on the various issues of the divorce, the mediator writes up a settlement.
Many mediators will file the settlement with the court on your behalf. But you should verify the scope of your mediator’s services in advance.
Any unresolved issues will have to be resolved at a later date or decided by the court.
Is Mediation a Good Fit For You?
As with a DIY divorce, you and your spouse are good candidates for mediation if you can communicate respectfully and negotiate for mutual good.
You both need to be transparent: honest and forthcoming with all relevant information such as finances. And you should want an equally beneficial outcome.
You will do well with this process if you want to have control over how your post-divorce lives look. For example, you may want to work together to design the best plan for your children’s living arrangements.
Marriages that have involved domestic abuse and/or power struggles, bullying, and control issues don’t lend themselves to the mediation process. A dynamic of inequality, domination/submissiveness, or threat/fear of retribution doesn’t make for a safe mediation climate.
Similarly, if one spouse has been dishonest with finances – hiding money, gambling, lying about earnings – mediation is not a good option.
So, ask yourself what is the personality of your marriage? Don’t expect it to change suddenly when you are in front of a mediator. If it involves any form of imbalance, we caution you to be wise here and to consider individual legal representation. At the very least, get educated and supported outside the mediation process so you are not as vulnerable.
3.) Collaborative Divorce
So far we’ve discussed the 2 “self-directed” versions of the 4 types of divorce. Money is always a big factor, and the first two models are the least expensive, if done correctly.
Another factor is the complexity of the various issues in your divorce and your confidence in navigating them without professional guidance.
You may not feel up to the task of navigating complex and potentially long-term consequential matters.
Finally, even if your divorce is uncontested and you’re determined to stay away from litigation, you may not feel comfortable without legal representation.
And that’s where the collaborative type comes in. Yes, it’s not just a tone or way of doing the divorce, “collaboratively”, there actually is a specific type of divorce called “the collaborative divorce model”.
The collaborative process is still an effort to stay away from litigation by settling out of court. It’s cooperative at heart, but partisan in practice.
The distinction between this and mediation is that, while mediation involves an impartial third-party professional, collaborative divorce doesn’t.
If you choose to use a collaborative divorce process, you and your spouse will each hire your own specially-trained collaborative divorce attorney.
From there, as a couple you will build your collaborative team, which may include a financial analyst, a mental health expert or a child specialist.
Collaborative divorce involves a series of 4-way meetings between you, your spouse, and your attorneys.
Instead of taking a neutral position like a mediator, however, each attorney will be negotiating with partiality for the desires and interests of his/her client.
Like the other models discussed so far, collaborative divorce relies on your and your spouse’s willingness and ability to communicate and negotiate civilly.
Trust and Integrity in the Collaborative Approach
Because there is no divorce discovery involved in the collaborative model, there is reliance on each spouse’s personal integrity to be forthcoming with all relevant information.
If you have reason to believe that your spouse is hiding or lying about information, these first 3 models of divorce won’t work for you.
Similarly, marriages with a history of domestic violence don’t lend themselves to cooperative types of divorce, whether DIY, mediation, or collaborative.
There are a couple additional caveats to the collaborative process.
First, as mentioned above, you will conduct your negotiations in 4-way meetings with partisan representation instead of one impartial mediator.
Second, you, your spouse, and your attorneys must sign a “no court” agreement at the beginning of the process. This also states that, if you and your spouse fail to reach a settlement, both attorneys must withdraw from the case.
That means you will have to start your divorce process over with new representation.
And that means, you got it…time and money down the drain
4.) Traditional Approach or Litigation (for an Uncontested or Contested Divorce)
The traditional type of divorce is when you hire a divorce attorney and your spouse hires a divorce attorney. You consult with yours; he consults with his, and the goal is to reach a settlement.
Learn what kind of lawyer you are actually looking for, and in your quest to find one, why you don’t want to search for cheap divorce lawyers.
This culminates most often with the four of you gathering around a conference table to negotiate the final details and to sign the final document. This is the way most people divorce today.
This is still an uncontested divorce, even though you each have hired lawyers. You, with the help of your lawyers, have ultimately agreed to all the terms.
If you cannot agree to terms, or the divorce starts off badly, then you run the risk of it becoming a “contested divorce,” or the Hollywood model of divorce.
Think: Kramer vs. Kramer, The War of the Roses, The First Wives Club.
It’s important to understand what a contested divorce is, when you and your spouse cannot agree to terms. Some divorces start out contested from the very beginning. There may be alleged fault in the divorce or the divorcing parties may be too much at odds to agree on anything without the court’s refereeing.
There is also the possibility that a divorce starts off uncontested – with no alleged fault – but becomes contested.
The fact that you and your Ex-to-be attempt a DIY divorce, mediation, or collaborative divorce doesn’t guarantee that you will see it through.
Whether you fail to come to an agreement on some issues or all, or one of you refuses to negotiate or abide by the law, you end up taking your contention before a judge. The judge will most likely say you both “need to settle” and you return home with another court date on your calendar for the weeks to come. The expectation is that you and your spouse will try again to settle in the interim.
But what happens if you can’t settle?
If you and your spouse cannot settle or compromise, you’ll have to return to court. You may end up battling it out there with lawyers aimed at winning rather than reaching an amicable, interest-based resolution.
Those most likely to go the route of litigation are couples who can’t cooperate to settle out of court.
Litigation also becomes the process of choice when one partner has unreasonable expectations.
Lawyers usually have a good idea of how a judge will rule. But some clients are willing to roll the dice in order to (hopefully) get the outcome they want.
On the other hand, there are also circumstances in which parties come to their divorce with unique issues that don’t check the boxes of predictable resolution. In these cases, litigation becomes necessary. Or maybe you must take your case to court because you worry about the safety of your children with their other parent? Or your spouse is unwilling to provide for you as stipulated by the law?
There are times when you have no choice but you must go to court.
As you can imagine, litigated divorce tends to be contentious and is definitely more costly in terms of time, stress, and money.
The Hybrid Approach
As with most things in life (marriage included), even well-mapped intentions have detours and speed bumps. Divorce is no different. For this reason, you may find yourself using a combination of these types of divorce.
You and your spouse may be able to agree on some things – child custody, selling the house, division of material assets. In those cases, mediation may work beautifully and save a lot of time and money.
But what if you can’t agree on your spouse’s 401(k), or alimony, or the percentage you should each get from your savings?
When cooperation comes to a halt on specific issues, it’s not uncommon to hire representation and “move up the ladder” of divorce options.
A hybrid approach to divorce allows you to do the best you can with cooperative, interest-based processes. Then, when and where you reach an impasse, you can bring in representation. If necessary, you can move towards a litigated settlement.
For this reason, we strongly encourage women to consult with a divorce attorney before agreeing to any type of divorce model.
Learn about your specific rights and what you are entitled to by talking with a lawyer privately. At the same time, you’ll learn more about the 4 types of divorce and which one’s right for you.
There are laws in place to protect women and children when a family unit changes. And you would have no way of “just knowing” what’s there to protect you without reputable guidance.
Hearing good counsel, even preemptively for education and guidance, can ensure you have access to everything you deserve. And of course, divorce support is always a good idea.
Notes:
For women thinking about or beginning the divorce process, you’ll want to know about Annie’s Group. This is SAS for Women’s powerful group coaching program for those wanting an education, community, and guidance for learning what is possible for their life.
Learn about Annie’s Group here.