Divorce Options in Connecticut
After making the difficult decision to divorce, many Connecticut couples are faced with the additional dilemma of deciding how to go about dissolving their marriage. In Connecticut, there are three main options: divorce mediation, collaborative law and divorce litigation. However, each of those options represents a very different approach with pros and cons that must be carefully considered. Regardless of the approach chosen by a couple, a dissolution of marriage action must be filed with the Superior Court so that court orders binding the parties may be entered.
Divorce mediation involves meeting (either individually or with counsel) with a skilled third party who facilitates a discussion of issues related to the divorce. The steps in any mediation include: 1) Exchange of information, 2) Agreement on finances, 3) Negotiation, and 4) Drafting.
What to look for when selecting a mediator:
Experience with the legal process; training in mediation techniques; and comfort level - is the mediator's personality a good fit?
Generally, the first meeting with a mediator is a consultation to determine the parties' comfort level and to determine whether the case is an appropriate for mediation. The mediator will establish the ground rules and provide the parties with a roadmap outlining their responsibilities and the mediator's expectations.
The next step in mediation generally involves the collection of financial information from both parties. Once the mediator has a summary of the parties' finances, the mediator begins the negotiation stage and encourages the parties to express their goals and consider compromise. If there are disputes, the mediator then attempts to resolve them through discussion with the parties and/or the involvement of forensic accountants, appraisers or other financial professionals.
If custody and/or parenting issues exist, the mediator may send the parties to a licensed clinical therapist or psychologist for his or her help in determining a parenting situation that is in the best interests of the children. Alternatively, the parties may discuss their custody/parenting issues with the mediator in an attempt to reach compromise.
Most mediators will suggest (and in some cases require) that each party retain independent review counsel. Review counsel is important because the mediator represents neither party and is not in a position to give legal advice or advocate for either party.
At the conclusion of a successful mediation, the mediator will either draft a Separation Agreement for the parties to review with their review counsel, or prepare a term sheet from which the review counsel will draft the agreement.
- Mediation is generally (although not always) a less expensive option.
- Mediation can avoid the delays inherent in the court.
- The parties learn negotiating skills that they can use later on.
- Couples with young children often find it easier to cooperate with one another at their children's events without feeling awkward or angry.
- Parties have more control over the result in their case than those who seek court intervention.
- In an emerging trend, some lawyers recommend their client hire a financial planner to help them with budgeting and other financial aspects of the divorce.
- In contested hearings, judges determine disputed issues after a day or less of testimony and do not have time to address the nuances of each couple's issues. Couples in mediation can fashion their own results that address the specifics that differentiate their cases from all other divorce cases.
A successful mediation generally involves parties who are on a relatively even footing in terms of their abilities to advocate for themselves and assert their positions. Mediation is not recommended for:
- Cases involving domestic abuse.
- Cases where one or both parties distrust each other, since a solid base of reliable information is critical to a mediation's success.
- Cases involving deception by one or both parties.
- Parties who are looking to "punish" one another.
Parties going into mediation must understand there are not "winners" and "losers." Both parties must compromise to achieve a mutually acceptable result.
Collaborative law is a cross between divorce mediation and litigation. Parties to a collaborative case are always represented by counsel. The steps to a collaborative case are identical to those in mediation, but at each meeting, the parties' respective counsel wear their advocates' hats.
- The process tends to run more smoothly than a fully litigated case.
- Unsophisticated parties who do not feel comfortable advocating for themselves have a representative who can help them navigate the process effectively.
- The collaborative lawyer is a trained advocate who has a sense of what a court would do in a given situation but who also appreciates the value of compromise in moving the divorce ahead.
- Collaborative law tends to be more goal-oriented than mediation, avoiding the emotional arguments that can sideline progress toward resolution.
- Since the collaborative process involves counsel through every step of the way, there are fewer surprises at the conclusion of the process.
- The goal of all parties is to reach accord. When everyone goes into the process with that common goal, many misunderstandings and disappointments can be avoided.
- Sometimes fees for the collaborative process exceed fees for mediation since two professionals are involved in every meeting and both are billing their time.
- If the process reaches an impasse, and litigation becomes likely, collaborative lawyers take the position that they will bow out of the case and new lawyers will be brought in.
Mediation and collaboration both require cooperation and the willingness of both parties to seek reasonable solutions to a variety of issues. However, not every case involves two reasonable, amicable parties. Sometimes, there is no substitute for a strong advocate and due process.
- Not constrained by the parameters of mediation or collaborative law, the attorney in divorce litigation is unfettered in his/her role as advocate for the best possible result for the client.
- Due process is often the most equitable way of resolving parties' disputes.
- The courtroom provides a forum where a disadvantaged spouse can level the playing field against a spouse who held all the cards throughout the parties' marriage.
- Some spouses refuse to take any action not specifically required by a court. In these cases, every issue requires a trip to the courthouse.
- Sometimes litigants need to play out their emotional disputes through the court process.
- A good litigator will consider and research substantive legal issues and anticipate evidentiary issues in advance of a court date. This preparation and research costs money.
- Litigation often involves delay, so trial of a case can involve significant court time.
- In most cases, both parties are paying legal fees from the same pool of marital assets and accordingly, litigation reduces the overall "pot" to be divided at the end of the case.
An element of mediation plays into every litigated case. At various stages of the process, the court will require that the parties meet with experienced mediators, or even a judge who will not be their trial judge, to determine whether all or at least some of the parties' issues can be resolved short of trial. Often, the parties resolve their dispute on the courthouse steps. A good lawyer looks at the strengths and weaknesses of his or her client's case and makes an educated guess as to the likely outcome.
Cohen and Wolf is uniquely positioned to help solve your family's problems
We realize that this is a difficult time for all parties involved, especially when children are involved. Our goal is to achieve the best, most expeditious result for the client through negotiations and, when necessary, in court. Our attorneys have extensive trial and appellate experience in Connecticut and New York. Richard L. Albrecht is a former prosecutor with significant experience in the trial and cross examination of various forensic experts. He is a fellow of the American Academy of Matrimonial Lawyers and serves on the faculty of the Connecticut Appellate Advocacy Institute. Jocelyn B. Hurwitz serves on the board of the Connecticut Council for Divorce Mediation and Collaborative Law. Our attorneys are involved in cutting-edge educational and networking organizations which keep them at the forefront of new developments in matrimonial law. If you are facing a divorce, or the possibility of a divorce, we are available to assist you with any questions you might have.