|Lee Borden, J.D., M.B.A.
Alabama Family Law Center
PO Box 780446
Tallassee, AL 36078
|John Quenelle, M.A.
The Resource Center, UAB
1717 11th Avenue South, Ste 521
Birmingham, AL 35294
Note: this is a paper John Quenelle and I wrote for a program at the annual conference of the Alabama Association of Marriage and Family Therapists in May, 2003. It describes and compares the available options in Alabama for couples who know they need to divorce and who are trying to decide the best way to accomplish it.
When a marriage fails and divorce must follow, what role remains for the marriage and family therapist who was providing couples counseling? We believe there is still much the therapist can do for the divorcing spouses. They have work left to do in managing their conflict and changing their interaction from that of lovers and intimates to that of co-parents, economic partners, or simply former friends.
The most acute need is to conclude the legal divorce. The focus of our presentation is on the alternatives available for accomplishing divorce in Alabama, the advantages and disadvantages of each, the approximate cost of each, and the circumstances in which the therapist might explore each with clients. Because we view uncontested divorce and divorce mediation as the least understood options, we have included extra information about them. Because we view adversarial divorce as the least desirable alternative, we have provided some suggestions for parties trying to break out of it.
The alternatives for accomplishing a legal divorce fall into four main categories:
(1) a pro se divorce (one in which neither party uses a lawyer);
(2) an uncontested divorce (one in which one party uses a lawyer and the other does not);
(3) a mediated divorce (one in which both parties meet with a trained neutral mediator, with or without the assistance of lawyers); and
(4) an adversarial divorce (one in which each party has a lawyer’s representation). An adversarial divorce may conclude with a trial before a judge, or it may resolved in negotiations before a trial is needed. We will discuss each alternative in order.
Table of Contents
“Pro se” is Latin for “for himself.” As one might expect, the term refers to a divorce in which each party acts on his or her own behalf, neither using a lawyer. Typically, one of the spouses prepares the documents and then both spouses sign them before filing. Although it is possible to conduct a contested divorce pro se (filing adversarial documents without the assistance of a lawyer), this is rare, and we have not attempted to address it here.
Advantages. A pro se divorce has two important advantages. The first is that it avoids paying any money to a lawyer, which of course can result in huge savings. Most people going through divorce are under financial stress, so this is important.
The second advantage is that, with no lawyer, the parties are less likely – or at least perceive themselves to be less likely – to have conflicts over the terms of their divorce. Without a lawyer to “stir the pot,” perhaps they find it easier to reach agreement on the key issues and sign the necessary paperwork. We believe it crucial that people going through divorce maintain as much control as possible, and filing pro se certainly helps to assure that control if parties are cooperative.
Most professionals involved with couples are vaguely or not so vaguely suspicious of pro se court filings. We tend to see them as risky and ill-advised – often including something about “penny wise and pound foolish.” However, pro se court filings in general and pro se divorce filings in particular are becoming the rule rather than the exception across the United States. As one extreme example, the court in Maricopa County, Arizona (Phoenix) offers forms and instructions on its web site for divorce and provides kiosks at the court building on which people can develop and print their own forms for divorce. About 70% of the divorce filings in Maricopa County are pro se. This trend is not yet visible in Alabama, where the incidence of pro se divorce filings is about 13%, but it’s on its way.
Disadvantages. Because pro se divorce filings are so rare in Alabama, parties filing their own pro se divorce have little guidance for the documents required, the language the court will require, or the sequence of filing. When something in a divorce filing is not quite right, the court’s typical response is not to fix the problem and allow the case to proceed but simply to reject the filing. This forces the parties to resubmit the documents after fixing the problem themselves.
Court staff, typically because they’ve been criticized by a lawyer, judge, or superior in the past for trying to be helpful, are generally reluctant to advise pro se litigants about what to do to correct errors in their documents. So the parties resubmit and hope for the best. This process can continue through rejection after rejection. The litigants become increasingly confused and frustrated, trying to guess what needs to change to meet the court’s approval. Meanwhile spouses who started out cooperatively may become frustrated with each other as the process drags on.
Another disadvantage of pro se divorce filings is that one or both of the parties may overlook and fail to address a crucial issue. One example is the handling of tax issues in divorce filings. It’s not uncommon for couples to get divorced and to find out months later (sometimes years later) that their failure to deal with a tax issue correctly has cost one (sometimes both) of them many times what they would have paid for some straightforward tax advice to help them at the time they were negotiating.
Generally, in considering a pro se divorce, the simpler the divorce, the better. Ideally, there would be little conflict, easily divided property, a marriage of short duration, no spousal support, and no children. At the least, the sophistication, knowledge, and skill of the parties should match the complexity of the divorce.
Cost. The cost or a pro se divorce could be limited to the filing fee, if the parties simply make up their own forms. More likely, however, they will purchase a kit or a set of forms on the Internet, the cost of which varies from about $30 to about $200. The filing fee varies by county, falling somewhere in the range of $150 to $207.
Uncontested divorce as we use the term refers to a divorce in which a lawyer represents one of the parties but not the other party. Under Alabama law, there is no such thing as a divorce in which a lawyer represents both parties. To do this would be a violation of legal ethics, and we know of no lawyer who would do it. Uncontested divorce is by far the most common method of divorce in Alabama, accounting for something like half of divorce cases filed in Alabama.
Advantages. The most significant advantage of an uncontested divorce is its cost. For a couple with fairly low levels of conflict and simple financial affairs, the cost of uncontested divorce should not exceed $700 (complete with filing fee) and often runs less. That’s certainly higher than the cost of a pro se divorce but still affordable for most couples.
Another advantage of uncontested divorce is the opportunity it presents to manage conflict. Depending on the lawyer, an uncontested divorce can be a low-key, cooperative process where both spouses are free to ask questions and get straight answers, and where both spouses, yes, even the unrepresented spouse, come to trust that the lawyer will provide accurate information.
Uncontested divorce tends to be perhaps the fastest way to divorce, because the parties tend to conclude their negotiation quickly, sign the necessary paperwork, and immediately file it with the court. Because the lawyer (presumably) is experienced and smart enough not to make mistakes, rejection is unlikely.
Disadvantages. In the hands of the wrong lawyer, an uncontested divorce may not feel cooperative at all. For the unrepresented spouse, it may begin to feel like being stuck at the wrong end of a shooting gallery. If the process begins to feel this way, the unrepresented spouse often decides, quite correctly, that he or she needs to have an individual advocate, and the process shifts into adversarial mode.
In addition, we all have heard horror stories about uncontested divorce. Most of these horror stories tend to involve parties who, while in crisis, signed papers they didn’t understand, prepared by their spouse’s lawyer, without gathering adequate information. They realized weeks later, or years later, that they signed away valuable rights, and then they were stuck. This happens too often even today, and it gives uncontested divorce a reputation for general unfairness.
Cost. The filing fee for uncontested divorce is the same as for any other kind of divorce. The legal fee tends to start at about $200 and run up to about $1,500. Lawyers often advertise a lowball price for uncontested divorce that does not include an agreement (which is needed in virtually every divorce), and does not include the cost of dealing with minor children. If a divorcing couple is price-shopping for uncontested divorce, they should insist on knowing the full cost of the divorce complete with preparation of an agreement, so they can compare apples to apples. Lee’s procedures for uncontested divorce are available on the web at http://www.divorceinfo.com/uncontesteddivorcewithlee.htm, and his flat rates for uncontested divorce are posted athttp://www.divorceinfo.com/alafamlawcenter.htm#WhatItCostsToUseAFLC.
Mediation still feels new in Alabama, but it has actually been around since the 1970’s. In mediation, the neutral mediator meets with both the husband and the wife, guiding them through the decisions they need to make so they can reach agreement and file their divorce with the court. Because a mediated divorce often looks to the court like an uncontested divorce (or sometimes like an adversarial divorce that is resolved before trial), we don’t have reliable statistics for the percentage of divorces in Alabama that are resolved in mediation.
This probably is a good place for us to address the various styles of mediation that are available. To us, mediation is a process where the mediator meets in the same room with both parties. Lawyers may join the session, but there’s no requirement that they participate. Except in rare cases involving domestic violence or brief interruptions for confidential exchange of information, both parties hear everything that goes on and participate fully at each step. When one party needs information from the other, he or she simply asks for it. Individual sessions rarely last more than 2-3 hours, and most negotiations happen directly between the parties with the mediator there only to lend guidance or suggestion when needed.
To many lawyers, however, mediation means something quite different. It means that both parties and their lawyers fully prepare their cases for trial, including full discovery and depositions of both parties (by which time both parties have already spent several thousand dollars in legal fees). Then the husband and his lawyer and the wife and her lawyer meet with another divorce lawyer (acting as mediator) for a brief orientation. Then the husband and his lawyer sit in one room and the wife and her lawyer sit in another, and the lawyer/mediator shuttles back and forth carrying offers, proposals, and responses. The mediator orders food for everyone, and the process continues until they reach agreement or give up. This process may go on for hours, until an exhausted husband and an exhausted wife finally surrender and reach agreement. The parties typically don’t actually talk to each other during this process; all communications flow through their lawyers and the mediator.
If it sounds from this description that we dislike this form of mediation, good. We think it squanders people’s time and money, steals control from people when they already feel out of control, and exaggerates the mistrust they probably already felt when they began the process. What’s more, because the process often depends on wearing down the resistance of one or both parties when they are (by definition) already in crisis, we think it is abusive. To us, this “caucus-style” mediation is simply a tool available in adversarial divorce, sort of like Heartbreak Hall with better cookies. To call it mediation is disingenuous and unfair.
Advantages. When we use the term “mediation,” we are describing a facilitative process in which both parties usually meet together and stay in control of their negotiations. The primary advantage of this kind of mediation is the spirit with which it allows the husband and the wife to confront the issues they face in divorce negotiations. With the help of a good mediator, both parties can come to grips with the difficulties each of them faces after the divorce, so they can fashion solutions together that respond to the needs of both parties.
Another advantage of mediation is that it encourages and facilitates access to the same information. In adversarial divorce each spouse tends to develop his or her own “narrative” for the marriage and divorce, in consultation with the attorney. In mediation, each spouse gets to hear the other spouse’s narrative and process it. The same thing happens with basic facts, like the value of the house they own. The more spouses share information, the easier they can reach an agreement that both of them can accept.
A well-trained mediator will help each party confront not only the challenges he or she will face after divorce but also the challenges the other spouse will be facing as well. This can be a powerful revelation that makes it easier for spouses to have compassion with each other and respond to each other’s needs.
Disadvantages. One key disadvantage of mediated divorce is that it tends to cost more than uncontested divorce. By definition, mediation tends to be more leisurely than uncontested divorce, and when the parties are paying the mediator by the hour, that translates into more money.
Another disadvantage of mediated divorce, which is true for all the options we have discussed so far, is that it depends on some degree of cooperation between the parties. They certainly don’t have to agree on everything at the outset for mediation to be helpful (and in fact if they do agree on everything there’s nothing left to mediate), but mediation makes little sense unless the parties are at least willing to listen to each other and consider each other’s needs.
Cost. The mediation process for a “typical” divorce – one involving a house, retirement plans, children, and some support issues between spouses who have the “normal” degree of conflict for people who are divorcing – tends to run for 4-8 hours, and if the mediator charges $150 per hour, that’s $600-$1200 for mediation. The mediator, even if he or she is a lawyer, cannot prepare papers for filing with the court, so there’s typically an additional charge for this service, adding $200-300. Then the filing fee brings the total into the $1,500 range.
Research about divorce mediation. Researchers have conducted more than 70 studies since mediation came on the scene about three decades ago. Research indicates the following:
- Mediation achieves a settlement in 50 to 80 percent of cases.
- Couples who mediate are more likely to be satisfied with the process and the results than couples who complete an adversarial divorce.
- Mediation doesn’t appear to have any impact on the long-term mental health of the participants.
- Couples who mediate tend to spend less time and money on their divorce than couples who complete an adversarial divorce.
- Mediated agreements tend to be more comprehensive than those resulting from adversarial divorce, including items like who will pay for bar mitzvahs, weddings, and college.
- Couples who mediate are less likely than adversarial couples to go back to court later to fight about something.
Similarities (and differences) between divorce mediation and therapy. On its surface, divorce mediation looks a lot like therapy:
- Both involve the husband and the wife in shared session (in the same room) with the professional.
- When they’re working well, the clients are doing the heavy lifting with the professional there to help only as and when needed. Good professionals know when to stop talking.
- There’s a common understanding that talking through issues is a good way to begin solving them.
- Both divorce mediation and couples therapy are focused on responding to needs creatively, using available resources.
However, there also are some key differences between divorce mediation and therapy:
- The focus is always on the present and the future, not the past.
- The focus is on the finite issues that must be resolved to finish a divorce (things like how to divide up what they own and what they owe, how they will care for their children, and who should pay what support to whom). Relational issues are relevant only to the extent they affect these finite divorce issues.
- Therapy is all about systems, self, role, and relational and emotional dynamics. Most divorce mediation issues (certainly not all, but most) involve money.
- Clients who enter therapy are usually willing to conduct significant self- and system-examination; it’s what they expect. Clients who come to divorce mediation are there to complete their divorce, and they become impatient with professionals who don’t help them do that. Just as lawyers who are mediators must stay vigilant not to put their legal hats on, therapists who are mediators must stay vigilant not to lapse into therapy with their mediation clients. (Under Alabama law, therapists who receive the qualifying mediation training may become registered as mediators with the Alabama Office of Dispute Resolution and be listed on that organization’s roster.)
The culture thinks adversarial divorce is the rule rather than the exception. And when you think about it, you can see why. Adversarial divorce is what the lawyers see. It’s what the judges see. It’s what the police see. It’s what the reporters see. With rare exception, adversarial divorce is what the therapists see. Consequently, the public tends to think that most divorces involve parties who square off against each other in court with separate lawyers. The culture is wrong. Adversarial divorce is relatively uncommon, accounting for about 24% of divorce filings.
The essence of adversarial divorce is that the wife has a lawyer and the husband has a separate lawyer. The lawyers and their clients negotiate with each other and may from time to time require the intervention of the judge to resolve issues on which they cannot agree. The parties may reach agreement on all issues, or they may be unable to agree and submit the issues to a judge in a divorce trial. When couples reach agreement, it often happens in the courthouse (“Heartbreak Hall”) on the day a trial or hearing is set.
Advantages. The primary advantage of the adversarial divorce is that there are some cases for which it is, quite simply, the only answer. When the parties are so caught up in their conflict that they are unable to listen to each other or to consider each other’s needs, they may have no choice but to square off and go at it in an adversarial divorce.
In cases involving domestic violence, adversarial divorce may be the only answer. When one spouse is beating up the other spouse, it’s silly to talk about their negotiating with each other on any kind of even-handed basis. They probably need separate advocates to sort it out and bring closure so they can stay away from each other.
Adversarial divorce offers the most tried and true method of getting full information to both parties. It offers an atmosphere where each spouse can ask questions freely and get straight answers from a person who is (one hopes) clearly on his or her team. In theory, this assures both parties full access to all relevant information.
Disadvantages. The first and most visible disadvantage of adversarial divorce is its cost. It’s rare for an adversarial divorce to cost less than $3,000 or so for each spouse, and the cost can run much higher.
Another disadvantage of adversarial divorce is the way it polarizes couples. Sometimes husbands and wives are able to talk with each other and feel tenderly toward each other when they start a divorce, and by the time they finish adversarial divorce they distrust each other to such an extent that they can’t have a rational conversation about anything involving their marriage or divorce without consulting their lawyer to find out what they should say. Worse, some former partners can’t have a rational conversation about anything, sometimes for years after the divorce is final, if not for the remainder of their lives.
If adversarial divorce is painful and expensive for the parties, it’s sheer hell for their children. It’s difficult to quantify the ways in which children suffer when their parents are in conflict, and adversarial divorce tends to feed and extend the conflict.
Perhaps everyone’s nightmare is the adversarial divorce in which the parties are arguing about custody of children. It’s a rare divorcing couple who can fight in court about custody without simultaneously soaking their children in the vile brine of that conflict.
Cost. The cost of adversarial divorce is the hardest to estimate, because so many parties are involved. For anything to get accomplished, the husband must be present and ready, the husband’s lawyer must be present and ready, the wife must be present and ready, the wife’s lawyer must be present and ready, and the judge must be present and ready. If one of these parties is not both present and ready, the case may get rescheduled to another date, when everybody has to assemble again.
Adversarial divorce is inherently inefficient, with parties and lawyers alike spending hours waiting for the next step in the process. And while they’re waiting the billing clock keeps ticking.
When the parties are arguing about economic issues, there is a built-in limit on the expense of their fight, because neither party tends to spend more fighting about an issue than the issue is worth. This limit isn’t meaningful when the parties are arguing about custody. What is it worth to have your child live with you? If you sincerely believe your children are in danger if they live with the other parent, there is no price you can put on it. You must win, never mind the cost.
If the parties are dug in, not talking to each other, and arguing about custody, it’s not unheard of for each of them to spend $50,000 or more getting divorced. And that’s just the fees. That doesn’t count the lost time at work, the misery they endure, and the misery they inflict on their children.
For all the reasons described above, adversarial divorce is our least favored alternative for divorce. Here are some suggestions for couples to try if they are locked into an adversarial divorce:
¨ Slow Down
Often the high levels of conflict that drive people to adversarial divorce will ease over a period of months. One option, then, is simply to separate without pushing immediately for divorce. A spouse who said “I’ll see you rot in hell, bitch” in April may be saying by September, “If you pay to prepare the papers, I’ll sign ’em.” It’s almost never a good idea to remarry quickly after divorce anyway, so if both spouses are receiving the support they need, perhaps waiting a few months after separation to get lawyers involved is the best strategy.
¨ Try Mediation
For all the reasons we stated under the advantages of mediation, mediation offers couples some “ice-loosening” strategies that may be helpful as they confront the possibility of adversarial divorce. They should notify their attorneys that they are attempting mediation, and they can decide in consultation with their attorneys whether they want their attorneys to participate in the mediation sessions or simply be available outside sessions to answer questions.
¨ Gather Information
One of the main reasons people end up in adversarial divorce is that they lack complete information about how a judge might rule on their particular issue. This usually comes about because (a) they’re not honest with their lawyer; (b) their lawyer is ill-informed or inexperienced, or (c) their lawyer is too busy to listen. The only true antidote for ignorance is learning, and this usually comes in the form of homework. Divorcing parties should be voracious readers and listeners. They need to gather lots of information. They need to work constantly to anticipate what arguments the judge is likely to hear (from both parties) and how he or she is likely to respond.
¨ Think Strategically
There are three questions a divorcing party should be asking constantly about any issue in controversy:
- What is this issue worth to me in today’s dollars?
- How likely is it that I’ll win?
- What is it costing me to fight about it?
If divorcing parties don’t know the answers to all three of these questions, or if they can’t confirm from the answers that this issue is critical, perhaps it’s time to explore a graceful concession. There’s a full description of the Thinking Strategically concept at http://www.divorceinfo.com/thinkstrategically.htm.
¨ Talk to Each Other
It’s amazing how many of the problems people fight about in divorce could be solved – or at least made easier to solve – if they knew more what the other party was thinking. In a case involving abuse, it’s entirely appropriate for people to stay away from each other. If that’s not the case, however, they usually have much more to gain than to lose by sharing honestly with each other what they see happening and what they wish would happen instead.
 One example is a technical requirement known to lawyers but not generally known to the public, that unless the pleadings contain specific enabling language, the plaintiff’s required testimony in support of divorce must be dated after the filing of the defendant’s answer.
 It’s a common complaint from pro se litigants that court staff were “rude” to them when they asked for advice about what to do next. A measure of compassion is probably appropriate here. Most of the staffers working in our court system didn’t start out brusque and short with the hapless people who ask them for help. They only became that way after being criticized by somebody for trying to give advice or provide help.
 The figure for divorces in which one party is represented by a lawyer and the other not represented at all is actually about 63%. However, some of these cases are quite adversarial even though one of the parties is litigating without a lawyer’s representation. Based on informal conversations with judges and court staff, we estimate that the percentage of true uncontested divorce (where one party uses a lawyer to prepare the papers and the other party signs those papers without representation) is about half.
 It’s not unusual for a lawyer assisting someone with an uncontested divorce to refuse to have any conversation with the unrepresented spouse about the issues of the divorce. This is certainly the lawyer’s right, but it’s not required, and it heightens the tension level for the unrepresented spouse, making it more likely that he or she will consult a separate lawyer.
 If an unrepresented spouse is being asked to sign papers prepared by the lawyer for his or her spouse, it’s easy to find a qualified lawyer to review those papers and point out questions and problems related to them. This is usually available for a simple hourly rate and would be a good option for a spouse to use before signing papers, particularly a spouse who is in emotional crisis or who lacks financial savvy.
Another option to limit this possible unfairness is careful consideration of which spouse should be represented. We suggest that there are four issues parties should consider in deciding which spouse should be represented in an uncontested divorce: (1) the represented party will be the plaintiff in the divorce documents, and this is sometimes reason enough for a spouse who refuses to have anything to do with “asking” for the divorce; (2) the “left” is more likely to be in emotional crisis than the “leaver” and therefore may have a greater need to be represented; (3) the party with less financial savvy has a greater need to be represented, for obvious reasons; and (4) if either party is considering filing bankruptcy after the divorce is effective, the party who is not planning to file has a greater need to be represented, because there are some things that can be done to structure the divorce so that spouse won’t be sucked into the bankruptcy later.
 The Alabama Office of Dispute Resolution, which maintains a roster of mediators eligible for court referral and asks mediators to describe the cases they handle each year, can account for only 403 divorce mediations in Alabama during 2002 (less than 2% of divorces). We believe this is understated but have no empirical evidence to support our belief.
 We have colleagues who passionately defend mediation as the best alternative for couples where domestic violence is involved. The recommended procedure for mediation in such cases is much more constrained, however, and requires the use of an advocate for the victim. Consequently, this may be another case where it’s mediation in name only.