Call for your initial consultation today!(919) 783-9333
Are you considering divorce?
Are you wondering what the process will be like? There are three basic alternatives in any divorce: Negotiation, dispute resolution, and litigation. Scroll down for a summary and full description of each option.
What To Expect
• Party to party
• Attorney to Attorney (both sides represented by counsel)
• Party to Attorney (only one side represented by counsel)
• Weeks to 1 month+
• Case can be settled within the first month
• Most cost efficient
• Settlement terms are confidential
• Negotiation can drag on or grow stale
• Other party has no obligation to settle
• Best settlement result sometimes not offered early
Negotiation is the quickest, simplest, least expensive way to resolve a domestic / divorce action. In this scenario, we have the client complete our Separation Agreement / Property Division questionnaire. We take this information and draft the first draft of a Separation Agreement / Property Settlement. The client reviews this document. Rik reviews this document. We make certain that we are all on the same page.
We then submit this first draft to the opposing party with a cover letter, letting them know that we desire to settle the case amicably and inviting them to get back to us with a response to this first draft.
First drafts of Separation Agreements are rarely signed. Typically the opposing party meets with his or her attorney, confers about the subject matter, and gets back with us with a letter agreeing to some parts of the Separation Agreement and disagreeing with others. We then analyze their response (or “counteroffer”) and get back with them with our thoughts / ideas on this (i.e. that with which we agree and that with which we do not agree).
The parties go back and forth like this until they reach an agreement on all issues. The final draft of the Separation Agreement / Property Settlement is then executed (both parties sign and have their signatures notarized). Both attorneys keep an original and the parties both get an original.
Only about 30% of domestic cases settle in this fashion. If it works, it is good for the clients in that they save a lot of money. The down side, of course, is that you don’t want to have to compromise too much to reach an agreement or you, the client, feel slighted / cheated. You don’t want to enter into a final agreement that is not at least fair and equitable.
Sometimes, if the clients are close with their offers, they can meet at dinner and resolve the matter between themselves and the attorneys can draft the final contested provisions (and the Separation Agreement is ready for signature).
One down side to continuing to try to enter into a Separation Agreement / Property Division is that, if the deal is not done after a certain amount of time (several months), the frustration level grows quite high. It must be kept in mind that only about 30% of clients resolve their domestic / family law case by just going “back and forth” in this manner. If they become stuck (doing it this way), they need to move on to alternatives 2 and 3.
2. Dispute Resolution
What To Expect
• Settlement Conference
• Mediation/Arbitration Hybrid
• Judicial Settlement Conference
• 1 to 4 months+
• Case resolved relatively quickly
• Legal costs controlled
• Settlement terms are confidential
• Events can prompt settlement negotiation
• Different options to fit different situations
• 75-100% settlement rate (mediation, JSC)
• 100% settlement rate (arb, med-arb)
• Other party has no obligation to settle
• Certain events do not guarantee resolution (settlement conference, mediation, JSC)
There are four classic alternative dispute resolution techniques that are being used in the domestic law arena:
This is where your attorney and the opposing attorney and the parties agree to meet. The objective is to get all four parties together in the same place (usually one of the attorney’s offices). Typically one party and their attorney are placed in one room and the other party and their attorney are placed in a another. For psychological / emotional reasons, it works best this way.
The key to resolving a case successfully with any of these alternative dispute resolution avenues, is preparation. To prepare the client, we have them complete a detailed questionnaire designed to elicit all the facts, figures, and evidence we need to resolve each / every domestic / family law issue (usually child custody, child visitation, child support, alimony, and property division). Then, we put together a trial notebook with all the relevant documents / evidence needed. The detailed questionnaire we have designed (to aid the client and paralegal in pulling this together) lists the documents needed (as well).
Once we have the completed questionnaire (clients detailed responses provided) and the trial notebook (assembled), Rik reviews both and develops a strategy /game plan with the client (for the settlement conference / informal mediation session).
A settlement conference / informal mediation can last as short or as long as the attorneys so choose. Typically the attorneys go back and forth into “the other side’s room” and float offers and discuss ideas for resolving the case.
Some of these settlement conferences can take all day (and into the night). Sometimes the parties will agree to time limit them.
Although it is difficult to put a percentage on it, settlement conferences / informal mediations are usually successful about 75% of the time.
The advantage of a settlement conference / informal mediation over formal mediation, arbitration, and collaborative law is that it usually lasts for a shorter period of time and there is no “third party” (such as a formal mediator or arbitrator) who has to be paid by the parties. Thus, the parties (if this is successful) can resolve their cases faster and pay less.
Formal mediation primarily differs from a settlement conference / informal mediation in that the parties hire a formal mediator for a formal mediation session. I only use a select number of mediators. There is a reason for this. An excellent, seasoned ,experienced mediator is often the KEY to resolving a domestic / divorce case. We only use either former Judges, Board Certified Specialists in Family Law (who have all had training in formal mediation), or attorneys with many years of experience with both domestic cases of their own and formal mediation. This is not a job for the beginner.
This setting is similar to the settlement conference / informal mediation setting in that the parties and their attorneys typically meet in one of the attorney’s offices. The parties and their respective attorneys are placed in two separate rooms. The mediator goes back and forth between the rooms. We have the client complete a very detailed questionnaire, prepare a trial notebook, and engage in a strategy session before attending formal mediation. Mediators typically charge around $225 an hour. A lot of the formal mediation sessions last all day and into the night (they would not last so long if the parties resolved their cases earlier, but most of the time, they don’t). Don’t shy away from the mediator’s fee. It is quite worth it. The parties usually agree to equally divide the cost of mediation (50 / 50). Let’s say, for example, that you mediate for 13 hours. The mediators usually adds a one hour “administrative fee” to their charge. So, 14 hours of mediation x $225 = $3150. $3150 divided by 2 = $1575. This is a small price to pay when you see what you often get. Over 90% of cases settle in formal mediation.
There are several reasons why formal mediation is so successful. The mediator has a vested interest in getting the deal done. He or she “succeeds” if they do so. The mediators we use are excellent at using copious emotional intelligence to win over the allegiance of both parties. Once they do so, the parties are willing to listen to what they have to say. These mediators have typically tried thousands of domestic / divorce cases themselves (or presided over them as the Judge). Thus, they are quite good at getting in the ballpark of “about what is going to happen in court anyway” if the case gets litigated. Both parties are naturally interested in resolving their case for the same result as they are likely to get in court for a far lower price and a lot sooner. Also, protracted litigation does take a toll on the parties. They are under intense pressure / stress and life is usually not very pleasant (while their case is in litigation). For these reasons and others, the parties have an incentive to settle their case (at this event). Additionally, the attorneys work (more so) in a proactive fashion towards creatively resolving the case (instead of fighting). The result is that you have two attorneys and a mediator all working toward a common goal (a fair and equitable settlement that is not too far off from what the parties are likely to get in court anyway).
If the parties successfully mediate their case, the attorneys usually draft a memorandum of understanding (on the spot) or sometimes can complete the draft of the Separation Agreement (that is in soft copy form) right then and there (and the parties execute the Separation Agreement and have their signatures notarized).
Arbitration is a different paradigm from a settlement conference /informal mediation or a formal mediation. Arbitration is much closer to an actual trial (like you would have in District Court). In an arbitration, both parties put on evidence(documents), the respective attorneys give opening statements, call and question witnesses, cross examine witnesses, and give closing statements (and can introduce case law). The arbitrator decides the case using N.C. law. The N.C. Rules of Civil Procedure and the N.C. Rules of Evidence apply. So, it is very similar to a trial.
The main difference is that the entire proceeding takes place at the arbitrator’s office (usually in a conference room or boardroom). The arbitrator is usually a seasoned domestic attorney or a former Judge. The proceeding is private, so the public is not made aware of it.
Some of the advantages of arbitration include: a. it is less time consuming than traditional litigation, b. it is less expensive than litigation (the parties usually equally divide the cost of the arbitrator), c. the case cannot get continued / bumped by other cases, and, d. every contested issue gets decided at arbitration (typically in one to two days)… so, there are no issues that need to still be tried later.
Arbitrations “work” 100% of the time in that all issues are resolved / finalized at this proceeding. That is another advantage. If you have a case that “just won’t end,” arbitration will end it.
The arbitrator renders his or her decision in the form of a written “Arbitrator’s Award” that one attorney or the other almost always has “confirmed” as an order of the court (thus making the end result virtually the same as if the parties had litigated the case in District Court).
Collaborative law starts with the parties to a domestic / divorce action signing a contract whereby they agree to NOT go to court against each other. They then agree to voluntarily exchange all documents and set up several “four ways.” Four ways are conferences where the attorneys and their clients all sit down together in one room at one table. They then attempt to resolve all issues in their case (as mentioned above – typically child custody, child visitation, child support, alimony, and the property division).
With collaborative law, as with the above other types of alternative dispute resolution techniques, the client needs to complete our major questionnaire, we put together a trial notebook (filled with the basic documents / evidence we need to resolve all issues in a domestic / divorce dispute), and plot strategy (before going to the first “four way”).
Collaborative law is typically more time consuming than the above three alternative dispute resolution techniques in that parties typically count on the process taking at least four sessions (the parties can agree to as many sessions as they want).
If the parties come to an impasse, they cannot continue to use the same attorneys (i.e. if the case fails to settle after x number of sessions, the parties would, in the normal course, file suit in District Court, but since they signed a contract not to do go to court, they have to both dismiss their current attorneys and start with new attorneys).
What To Expect
• File a lawsuit in Distrct Court
• 30-60 days to respond
• Voluntary document disclosures
• Financial Affidavit
• Discovery (Interrogs, RPD, RFA, depositions)
• Mandatory mediation (custody)
• Temporary hearings (custody, child support, PSS, Interim ED)
• Permanet trials (custody, child support, Alimony, ED, Attorney’s Fees)
• Post trial obligations (QDRO)
• 4 months to 1 year+
• Receive “day in Court”
• Leverage a better deal and settlement offers may improve
• Court Orders are enforceable by Contempt of Court proceedings
• Court Orders are modifiable (custody, child support, alimony)
• Long, indefinite resolution time frame
• No control over terms
• Most expensive track
• Names, facts, rulings are public record
Litigation track – Litigation is commenced when one party files a lawsuit in District Court. Typically, with domestic actions, that lawsuit will list a number of issues for the court to decide including child custody (temporary and permanent), child support (temporary and permanent), post separation support (like “ short term alimony”), alimony, attorney’s fees, and equitable distribution (property division).
Once a lawsuit is filed and served, the opposing party has thirty days to file a responsive pleading (“Answer and Counterclaims”) but can obtain 60 days to file a responsive pleading by filing a Motion with the Civil Clerk’s office.
The following happens when a lawsuit is filed (some of these are required, others, not required but they are typical once litigation commences):
- Initial disclosure documents are produced by both parties (a laundry list of documents)
- An income and expenses affidavit is drafted, reviewed, filed, and served
- An equitable distribution inventory affidavit (i.e. plotting all marital, separate, and divisible property and debt) is drafted, reviewed, filed, and served
- You must attend custody mediation orientation (where you see a film on how to be a good parent)
- Custody mediation (conducted by a Wake County mediator who is not an attorney – attorneys are not allowed to attend – if you agree with your spouse to a custody and visitation schedule at the mediation, the Wake County free non attorney mediator drafts a Parenting Agreement for you – for your attorney’s review)
- An equitable distribution Scheduling and Discovery Conference is set (the first of three required pre trial conferences for the property division issue)
- A trial on the issues of post separation support, temporary custody, temporary child support, attorney’s fees, and interim allocation is set
- We have you fill out a detailed questionnaire
- We prepare the trial notebook
- We meticulously prepare for the first hearing (which, as mentioned above, is typically re: post separation support, temp. child custody, temporary child support, attorney’s fees and an interim allocation (of marital funds)
- Discovery commences (where either party can file Requests for Production of Documents, Requests for Admissions, Interrogatories, and Requests for Entry on Land)
- Depositions are scheduled (where parties and witnesses are compelled to answer questions from the other party’s attorney before a court reporter)
- The “next trial” is set for by the family court office (usually either permanent child custody or alimony)
Our family court system calendars trials for the litigants. The attorneys used to have control over when domestic / family law issues were calendared. That is not true anymore. Once a lawsuit gets filed, it is fast and furious in the sense that your case becomes very active (with all of the items itemized in A – M above and more). The up side to litigation is that, if you can’t resolve your case in any other way, it typically needs to be resolved in some fashion and this guarantees that it will get resolved. The down side is that a Judge forces decisions (by fiat)down the party’s throats (via court order). The clients lose control over their cases (in the sense that they now have no input into the final determination of the issues being litigated), and, in court, when you appear before a Judge who has never met you before, that Judge could come down with a radical result that neither party likes or one party loves and the other party hates (i.e. a radical result could occur)… whereas if you mediate or negotiate out your domestic case, the parties, by definition have to meet somewhere (where they settle their case) where all parties can agree and they are usually resolved in an equitable manner).
Litigation is the most expensive, time consuming way to resolve a domestic / divorce case.
Having said that, I litigate domestic / divorce cases all the time and stand ready, willing and able to zealously advocate your cause in court if need be. There are some cases that cannot be resolved in any other way.