It has become common knowledge that nearly 50% of marriages in the United States end in divorce. When it comes to divorce in New Mexico, there are a variety of ways to approach the divorce process, which can be broken down into three general categories: litigated divorce, collaborative divorce and a Pro Se divorce. These are only general categories. There will be variations within each general category.
A litigated divorce means that the parties are actively using the court process to complete their divorce and is what people usually associate with the idea of divorce. A litigated divorce may be necessary when the parties cannot come to an agreement on child custody, child support, property division, etc. However, a litigated divorce is not just one that ends with a trial and decision by the judge rather; a litigated divorce really just means that the court is more actively involved during the pendency of the divorce. In most so-called litigated divorces, there is no trial and the parties reach an out of court settlement. However, the court may have to order the parties to participate in settlement or may have to issue interim orders about custody or who will pay the bills while the divorce is pending. If the case does move to trial, a judge has the power to make all of the important decisions regarding property division, support and child issues.
A collaborative divorce is one in which both parties agree to work in partnership to reach a divorce settlement agreement without going to court. Typically, each party has their own attorney but there are also other agreed-upon professionals, such as a child custody specialist and an accountant involved to advise both parties on how to best address the issues involved in their divorce. The collaborative process depends on complete transparency between the parties and all of the professionals involved as they work together to craft a divorce settlement. A collaborative divorce may be less expensive than a litigated divorce, if the parties complete the process and reach an agreement. However, in a collaborative divorce, the parties and their attorneys enter an agreement whereby the attorneys are forced to withdraw if litigation is threatened or the parties cannot come to an agreement. This means that should this happen, the parties would need to get new attorneys and begin the process of divorce again. So collaborative divorce is only effective if the parties truly commit to that form of resolution.
Using mediation or settlement facilitation is a sort of happy medium between a fully litigated divorce and collaborative divorce, which involves the parties using a neutral third party to negotiate a divorce settlement. Parties work with their individual attorneys during mediation to understand their rights and obligations. The mediators are not allowed to dispense advice to either party, but should be trained professionals that can give each party a reasonable idea of how the court will address each issue in order to encourage settlement. In a litigated divorce, parties are almost always ordered to participate in at least one mediation or settlement facilitation before the court will grant them a trial and, in a collaborative divorce, the parties may choose to uses a mediator or facilitator to assist in negotiations.
Finally, in a Pro Se divorce, the parties do not have attorneys and prepare documents resolving their divorce themselves. Keep in mind that Pro Se does not mean uncontested or that the case is not litigated. In fact, Pro Se divorces can often be the most adversarial of all for numerous reasons. A Pro Se is often not recommended unless the marriage was short, there are few assets, and there are no children involved because the parties may be giving up rights or incurring responsibilities that they do not fully understand. Though avoiding attorneys sounds, and sometimes is a good thing, a Pro Se divorce can go south pretty quickly. In addition, and perhaps more importantly, the parties make decisions and agreements that are bad for one or both of them which without the good graces of the other party cannot be undone or require extensive legal assistance to fix.
If you are contemplating divorce, your options may be dictated by financial considerations. If you can afford one, it is generally advisable to seek the guidance of an experienced family attorney to discuss the best way to approach your individual situation.
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Collins & Collins, P.C.