What Kind of Divorce Do You Need?

You are getting divorced. It happens to the best of us. You are not alone. But you may be confused. When you look for information about getting divorced, you may feel like a fish out of water. You find a lot of different options: pro se, uncontested, collaborative, mediated. What kind of divorce are you looking for? More importantly, what kind of divorce do you need?

Pro-Se (Unrepresented) Divorce

Pro se is a Latin term meaning “by oneself” or “on one’s own behalf.” It refers to someone who represents themselves in court without the help of a lawyer. Many people want to represent themselves in court cases and not hire a lawyer to represent them out of fear that hiring a lawyer will unnecessarily complicate the divorce, make it more adversarial than it needs to be, and cost them a lot in legal fees that they can save if they represent themselves.

Parties who represent themselves in their own divorce cases are usually able to navigate the process using self-help books, online tutorials, standardized forms available on the Washington Courts website, and the assistance of family law facilitators. Facilitators are available in most counties, and provide information about family law court procedures and instructions for filling out the family law paperwork for divorce and other matters (including child support modification, parenting plan modifications, and restraining orders).

Although they can (and often do) successfully complete their divorce case without attorney representation, unrepresented parties may sometimes hit a snag in the process when they don’t agree on one or more issues, such as division of property or debts, legal custody of their children, or their parenting schedule. In those cases, they may have to file a motion and attend a hearing or even go to trial. In those cases, it may be appropriate for them to consult with an attorney for legal advice or to assist them in resolving the disagreement on an “unbundled services” basis, such as by helping them draft a motion or get ready for trial.

Sometimes, especially when the case becomes contested and a hearing or trial becomes necessary, unrepresented parties may benefit from hiring a lawyer to represent them. Our attorneys are available to help pro se parties navigate the divorce process, or to step in and represent them when the need arises.

Uncontested Divorce

An uncontested divorce is one where both spouses are in agreement on all issues. Because they are in full agreement and only have to fill out paperwork and submit it to the court, many divorcing couples decide they can proceed without lawyers and do it themselves. Or they may want help preparing the paperwork, filing it with the court, and completing the divorce process. In that case, they can work with a family law facilitator or hire an attorney.

Although it may be ideal if the parties can hire one attorney to represent them both, most attorneys will not agree to represent both parties because it creates a conflict of interest. A lawyer cannot ethically represent both parties who have an inherently adversarial relationship. Even if they agree on all issues, two spouses who are divorcing are adversaries, in that their legal rights and interests are inherently opposed. One may get to keep the family home; the other may be entitled to payment of a share of the equity. One may be entitled to spousal support; the other may be obligated to pay it.

In that case, the divorcing spouses may decide they each will hire an attorney, or that only one of them will hire an attorney. In this case, the spouse who does not hire an attorney must understand that the other spouse’s attorney, no matter how helpful they may be, does not represent them or their interests. If they ever feel that the process is unfair or that they are being taken advantage of, they should hire their own attorney to represent their interests.

That said, in most cases, the attorney representing one party will merely draft the paperwork, file the case with the court, and orchestrate the submission of final orders, which are agreed, which can greatly help both parties complete the process quickly and efficiently. Our attorneys are available to represent parties in uncontested divorce cases. We have an effective, proven process that helps our clients complete their divorce process efficiently and inexpensively.

Mediated Divorce

Another option for parties who may disagree on a few issues but don’t want to hire attorneys to represent them is a mediated divorce.

Mediation is a process where a neutral third party known as a mediator helps parties work collaboratively to resolve disputes and reach agreements. Mediation is often used to resolve disputes in divorce cases, and is mandatory in most contested divorce cases before the case can go to trial.

In a mediated divorce, the parties hire a mediator to work with them to resolve any disputed issues and help them write an agreement that can be incorporated into their divorce decree, parenting plan, and support orders.

Parties who choose the mediated divorce option need to be aware that, although the mediator may be an attorney, the mediator does not serve as an attorney for either party and cannot give legal advice. As a neutral, the mediator cannot take sides or decide things for the parties. The mediator may, however, provide information to the parties about the process and help them evaluate options so they can make informed decisions.

Also, the mediator cannot file legal papers on behalf of the parties. However, if the mediator is an attorney, the parties could mutually agree that the mediator can serve as attorney for one of the parties after the conclusion of the mediation for the sole purpose of filing the agreed papers and facilitating the entry of final orders with the court.

Mediated divorce has become a popular option for parties wishing to complete their divorce and resolve disputed issues cooperatively, without having to hire separate attorneys. Our attorney Jeff Smoot is an experienced family mediator who has mediated numerous divorce and custody disputes.

Collaborative Divorce

Collaborative law is a process that helps parties work cooperatively to resolve disputes and complete their legal process without adversary litigation. It is most often used for divorce cases.

In the collaborative divorce process, each party is represented by a lawyer who provides them with legal advice and guidance, but not adversarial legal representation. Collaborative lawyers work together to help their clients resolve disputes without having to file contested motions or go to trial. The parties and lawyers agree in advance that they will work together to complete the process, share documents and information, and use negotiation, mediation, counseling, and other options to work through the process instead of filing motions or going to trial.

In most cases, the collaborative process works well and helps divorcing couples get through the process with a minimum of conflict. However, collaborative law has a potential downside: If the parties are unable to resolve disputes and reach agreements, and have to resort to the courts, their lawyers have to withdraw from the case and they have to hire new attorneys.

For this reason, we do not practice collaborative law per se. Our attorneys will work collaboratively with the opposing party and attorney if it is how our client wants to approach the case, but we won’t withdraw from the case just because an impasse is reached that requires a motion to be filed or a trial to resolve any unresolved issues.

Sometimes, it is necessary to go to court to resolve an issue, and you shouldn’t have to hire a new attorney if it does.

Contested (Litigated) Divorce

Some couples know that they won’t be able to work collaboratively in their divorce due to various reasons including high-conflict, distrust, or inability to agree on almost anything. For them, the process will be contested, and they will litigate. They need to lawyer up.

A contested divorce will involve filing and serving papers, conducting discovery to gather financial information and documentation, filing motions to resolve interim issues, and going to trial. It may involve taking depositions, serving subpoenas on potential witnesses, hiring experts to give opinions regarding valuation of assets or business interests, engaging parenting evaluators or a guardian ad litem to inform the court regarding parenting issues, and more. And it will be expensive. Very expensive in many cases.

We encourage our clients to take a collaborative approach to divorce, but recognize that it doesn’t work for everyone, so we are available to represent clients in litigated divorce and family law cases.

If you need advice or representation regarding divorce, custody, support, or any other family law matter, we can help you decide which approach is most appropriate for your situation. Call us at (206) 420-2466 or email westwoodlawoffice@gmail.com to schedule a consultation.

 This blog is intended for informational purposes only and does not constitute legal advice or an offer of representation. No attorney-client relationship is intended or created by this article. If you wish to obtain legal representation, please contact Westwood Pacific Law PLLC at (206) 420-2466 or westwoodlawoffice@gmail.com.