If you are contemplating a divorce, or your spouse has asked for a divorce, you already know that your life is about to change. You may not be able to change the fact that your marriage needs to end, but you have control over how it happens. There are more divorce options available in Maryland today than there were even ten years ago. It’s important to understand your legal options for divorce so that you can choose the divorce process best suited for your needs.
Litigation (going to court) is only one of multiple divorce legal options available. The various legal process options for divorce have different advantages. The type of divorce that is best for your neighbor or family member might not be best for you; speak with an experienced Maryland family law attorney to explore your options.
Litigation is the divorce process with which most people are familiar. In this process, one spouse who has grounds for divorce files a lawsuit to begin the process. Parties to most litigated divorces reach a marital settlement agreement before it is necessary for the case to go to trial. However, if the spouses cannot settle their divorce, the terms of the divorce will be settled by a judge at trial.
Advantages: Litigation offers structure and a legally binding process that can help keep a divorce moving forward and protect the rights of the parties. And it has a built-in deadline of the trial date, when even without agreement a decision will be made.
Disadvantages: Litigation can be costly, time-consuming, and can escalate conflict. Parties may have less input into the terms of their divorce, and records of court proceedings are public.
Best for: Spouses who have an unequal power dynamic, spouses in which one party is unwilling to move forward with the divorce, and divorces with unusual complexities such as international issues or financial abuse. Litigated divorce is also best if there is a concern that one spouse may be concealing assets or otherwise behaving dishonestly. Other situations where litigation may be needed is where one spouse is withholding needed financial support or is preventing a healthy parenting relationship. And of course, if the other spouse starts litigation for any reason, you will have to defend yourself in that litigation.
In Maryland, if spouses are able to agree to the terms of their divorce prior to filing, they may be eligible for a mutual consent divorce. Couples must resolve all disputed matters, including child custody and child support if applicable.
Advantages: With mutual consent divorce, couples do not need to be separated for a period of time before being granted a divorce, and do not need to allege fault grounds.
Disadvantages: Spouses must be able to meet all statutory requirements to be granted a mutual consent divorce. If they choose to negotiate a settlement without an attorney’s help, they risk agreeing to terms they do not fully understand or which are not in their best interest.
Best for: Couples who are able to reach an agreement on their own or with the help of attorneys and/or a mediator.
Mediation is a form of alternative dispute resolution (ADR) in which divorcing spouses work with a trained, professional, neutral third party, the mediator, in a voluntary and confidential setting, to reach an agreement on the terms of the divorce. The mediator does not issue a ruling on disputes, but facilitates discussion between the parties so that they can reach a mutually acceptable resolution. Spouses may mediate disputed issues in their divorce prior to filing a divorce complaint in Maryland, or while a divorce case is ongoing.
Advantages: Mediation proceeds on the couple’s timetable and offers them flexibility to reach solutions that work for them. It can be quicker and less costly than litigation, as well as more private.
Disadvantages: Mediation is not suitable for all situations, such as where there is a significant power imbalance between spouses. Mediation also does not guarantee a resolution to the dispute.
Best for: Couples who are willing to negotiate in good faith, with or without an attorney’s help.
Collaborative divorce is another form of ADR. In Collaborative divorce, specially trained attorneys and other professionals support couples in negotiating a divorce settlement through a series of meetings. All parties involved sign an agreement to communicate openly and honestly and not to resort to litigation. As part of the agreement, if one of the spouses breaks the rules and resorts to litigation or refuses to disclose needed information, the attorneys and other professionals must resign, with the consequent loss of time, effort, and money invested to that point. This incentivizes the parties to work in good faith.
Advantages: Collaborative divorce can be more respectful and dignified, allow couples to be flexible and creative in resolving their disputes, and offer extensive professional support. The process proceeds on the couple’s timetable. Information learned in settlement negotiations cannot be used against the other party at trial if the Collaborative process breaks down.
Disadvantages: Spouses need to hire new attorneys to help them litigate if the Collaborative process falls apart. The process is not suitable for parties who are unwilling to negotiate honestly.
Best for: Couples who want to minimize conflict and hostility in their divorce and want the help of legal, financial, and mental health professionals in reaching a settlement.
An attorney-negotiated settlement is just what it sounds like: divorcing spouses work together with their attorneys either in person, by phone, or virtually to negotiate a marital settlement agreement. This process may take place prior to filing for divorce so that the couple can seek a mutual consent divorce, or after filing for divorce in an effort to avoid a divorce trial.
Advantages: Divorcing spouses receive the guidance of an experienced attorney throughout the divorce process. If settlement negotiations break down, couples can litigate their divorce using the same attorneys, unlike in Collaborative divorce.
Disadvantages: If the process breaks down, in some situations one party may use information or documents shared in settlement negotiations against the other party at trial. This process may be unsuitable if one spouse is dishonest or if the spouses have unequal bargaining power.
Best for: Couples who want to reach a divorce settlement but want the advice and advocacy of a trained attorney throughout the process.
In a DIY divorce, as the name suggests, the parties handle everything on their own, from drafting documents to filing with the court to negotiating a settlement to representing themselves at a hearing to finalize the divorce.
Advantages: Because there are no attorneys involved, there are no attorney fees, making the up-front cost of the divorce lower.
Disadvantages: Because parties are not getting legal support and advice, the process can break down and take a long time. Parties are also susceptible to signing an agreement they do not fully understand, and which may not be in their best interest and may overlook big problems that an attorney can help solve.
Best for: Amicable couples in short-term marriages with no children, few assets, equal bargaining power, and no complicating factors such as domestic violence or substance abuse. However, even in the most straightforward of divorces, parties benefit from having the guidance of an experienced family law attorney if nothing else to review their agreement before filing for divorce—especially if the other spouse is represented by an attorney.
The bottom line is that the only way to identify the best divorce legal process for your unique situation is to speak with a Maryland divorce attorney. An attorney will listen to the specific facts of your situation and help you choose the divorce process best calculated to achieve your goals. To learn more about your legal process options for divorce in Maryland, contact Strickler, Platnick & Hatfield to schedule a consultation.