Once a couple makes the very difficult decision to get divorced, the first decision that should be made is not the details of the divorce settlement, but rather the question that should first be answered is “How do we get divorced?” Discussing this question with your spouse provides you with an opportunity to choose a divorce process that meets your needs.
Finding the right divorce process is an important step toward finalizing the terms of your divorce decree, which is the legal document that needs to be signed by the court to dissolve a marriage. By not making an active decision about which process is right for you and your spouse, you could find yourself amidst a family mess fraught with tough emotions, incredible expenses, and destructive choices, asking “How did we get here?” All because “How do we go about doing this” was overlooked. No matter which process or processes are utilized, the result is the same: a court order for marriage dissolution.
The good news is multiple process options are available. Working with your spouse to jointly choose a process or processes for your divorce is important because it can set the tone for decision making over the next months, years, and for your life after your divorce is final. Recognizing that it is not uncommon for divorcing spouses to be at different stages of readiness for divorce can also be helpful when considering process options available. Whether you and your spouse jointly agree to divorce, you are the initiator or you are not the initiator, both spouses have a say in which divorce process or processes are chosen. The divorce process utilized effects how decisions are made, the relationships inside and outside your family, and the types of support you may need and can receive.
Many divorcing parties are surprised that there are several options available that provide opportunities for vastly different divorce experiences, and while divorce can be taxing even under the best most amicable circumstances, some processes can be more taxing than others – either emotionally, financially, or both. Some processes give families power and self-determination in their outcomes when figuring out what works best for their family going forward. Other processes recognize that some families need a Judge to decide how to resolve their disputed issues. Some processes are more family-friendly and others are more adversarial.
Here are several factors to consider when thinking about which divorce process or processes may be right for you and your spouse:
relationship dynamics
ability to work with your spouse
emotional capacity and bandwidth available to you and your spouse
comfort with the spectrum of confrontation from peaceful to extremely combative
how quickly do you want the process to be completed
complexity of assets and liabilities to be divided
importance of future family connections and dynamics
finances available
amount of control you want over the terms of your agreement
level of professional assistance and/or guidance you want
desired level of thoroughness and quality in your agreement
future financial stability needs, and
co-parenting and creating stability for your children.
Once you discern which factors are important to you and your family, ranking those factors in importance can aid in determining the divorce process or processes that may be most helpful to you and your family during this time of transition from one household to two households.
Following are descriptions of divorce processes available to you. Each approach may involve varying degrees of the factors listed above. Sometimes these processes overlap and sometimes spouses utilize multiple processes to resolve their disputes.
Kitchen Table Approach
This is the do-it-yourself method. Here, couples sit down together and decide together how to separate property, co-parent, and provide financial support if needed. Spouses represent themselves and work together to fill out the divorce paperwork using a court provided form. This is a good option if there is no real estate, children, or spousal maintenance involved. Often spouses do not realize the intricacies surrounding real estate, children, and spousal maintenance. If these issues exist, an attorney is strongly advised. The do-it-yourself divorce could create many problems in the future. However, for a short-term marriage with little to no assets or liabilities, forms are available on the Minnesota Judicial Branch website. The site also provides an overview of the divorce process in Minnesota.
Minnesota Judicial Branch - Divorce (mncourts.gov)
Mediation Approach
Mediation is a form of alternative dispute resolution that seeks to resolve disputes between parties outside of the court process. This process allows spouses to discuss conflicts in a controlled environment with an impartial neutral facilitating the discussion. In a divorce, this process may or may not be court ordered and may or may not be attorney assisted. With agreements made in mediation, you may still need an attorney to draft your mediated agreements into a proposed order, called a Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree, for the Court to review. Mediation may also be used as a tool within the other approaches to help parties reach agreements when stuck. In Minnesota, mediators are qualified neutrals. The Minnesota Supreme Court maintains a roster of qualified neutrals.
Alternative Dispute Resolution (ADR) (state.mn.us)
Collaborative Law Approach
This is a voluntary process that utilizes attorneys as advocates without going to court to resolve issues. Attorneys assist with the divorce process, provide legal advice, and protect your interests based on goals established by you and your spouse. Spouses can also work with a multidisciplinary group of professionals in a customized process based on client needs, including a blend of legal, financial, parenting, and relationship expertise. This approach limits the scope of attorney services to out-of-court problem solving. Each spouse’s attorney is trained in the collaborative approach. It is a child-centered and family friendly approach to dissolution.
Collaborative Law Institute – Resolving Disputes Respectfully - Collaborative Law Institute
Attorney Advocates as Settlement Negotiators Approach
This is the most recognized approach to divorce. Some couples assume the only way to make it through a divorce is with a traditional divorce process in which one or both of you hire an attorney to advocate on your behalf in the settlement process. If that does not lead to resolution, then the attorneys advocate for you with the commencement of a court proceeding. Here, attorneys help you navigate the divorce process, give you legal advice, and protect your interests. Attorneys can lead settlement discussions and negotiate on your behalf whether your divorce is uncontested or in a contested divorce situation. The main difference from the collaborative approach is that the scope of the attorney’s representation in this process can include utilizing the court for resolution. Attorney’s need to be skilled both in negotiation as well as handling cases in court.
Attorney Advocates as Litigators Approach
Here, couples are unable to resolve some or all the issues themselves and need a third party, i.e., a district court judge, to make divorce decisions for them. Divorce is a lawsuit where one spouse sues the other for dissolution. If spouses are unable to reach agreement, then a trial is necessary so that a judge can make property division, parenting, and financial support decisions for you. Trial is a costly solution, but sometimes unavoidable. It is important to note that even if you are in a court process or a litigious process, many counties in Minnesota will require divorcing couples to attempt alternative dispute resolution processes, such as mediation, early neutral evaluations for social and/or financial disagreements, prior to litigation.
In Minnesota, divorce is a legal process that dissolves the marriage of two parties. No matter which process or processes you use, you must file forms with the court and receive a court order from a judge in the district court in the county where one spouse is living to be legally divorced.
Galowitz Olson PLLC family law attorneys are versed in each of these processes. We offer the full spectrum of services to meet your divorce process needs. We have qualified mediators, trained collaborative attorneys, and strong attorney advocates for negotiation and/or litigation. The attorneys at Galowitz Olson, PLLC are well qualified to provide you with the full spectrum of process options, such as:
drafting a Judgment and Decree based on spousal agreements,
mediating disputes to help you get unstuck,
representing clients in a collaborative approach,
advocating on your behalf in settlement negotiations, or
advocating on your behalf in court.
We are happy to discuss the “how” with you as much as the “what” and assist in making these important decisions for your short-term and long-term goals. Please call or email to set up an initial, complimentary consultation if you are interested in learning more about the process options available to you.
Written by Melissa Miroslavich
The material contained herein is for informational purposes only. It does not create an attorney-client relationship between Galowitz • Olson PLLC and the reader. By viewing our blog, the reader understands that the information herein is not offered as legal advice and should not be used as a substitute for legal advice. Readers are encouraged to consult with an attorney for questions related to a specific situation or concern.
