There Are Not Fifty Ways to Leave Your Lover

By: Carole L. Chiamp

Prominent Michigan family law attorney Carole L. Chiamp, who is of counsel to our firm, is a family law court-approved mediator. She is among the first attorneys in Michigan to obtain this designation. She currently authors a monthly article in the Michigan Family Law Journal entitled "Mediation Matters."

You know how the old Simon and Garfunkel song goes, “Just slip out the back, Jack. Make a new plan Stan. Hop on the bus Gus. You don’t need to discuss much....” Unfortunately it’s not that easy if you happen to be married. You need a divorce and there are really only five ways to leave your lover. They’re listed below.

1. Do-It-Yourself

This method is almost never recommended as divorce is complicated. In a very few short-term marriages with no assets/debts to be divided, comparable incomes and no spousal support, it may be possible. Both parties, even in such a situation, should have separate attorneys review the final documents.

2. Mediation

In mediation, couples work with a neutral mediator who helps them come to an agreement on all aspects of their parting ways. Both parties should have an attorney to consult prior to signing final documents.

Consideration on the “yes” side of mediation is that there is no court fight; the children usually have an easier time; the agreement is private and can be expedited instead of public on the court’s schedule. Control is with the parties instead of a judge. It usually costs less.

On the “no” side is that you waste time and money if agreement is not reached; if the mediator is not excellent at his/her job, issues can be missed. The agreement can lead to legal complications if not drafted properly. Assets may be missed if people rely on the other’s word instead of formal discovery. Sometimes the mediator unwittingly assists a controller or bully buy forcing a bad agreement in order to get any agreement.

3. Collaborative Divorce

In a collaborative divorce, each side is represented by an attorney and both parties agree to come to a settlement. Attorneys and clients agree that their attorneys will withdraw if the parties cannot come to an agreement. Both parties must then start over with new attorneys.

All discovery of financial matters is voluntary. In fact, the parties agree on experts to do evaluations. You need to be careful, though. Often the husband in high income-high asset cases is in control of the money and assets can more easily be hidden without formal discovery. Further valuing of businesses can be contentious.

If you suspect your spouse is hiding assets, the methods discussed above will not render the best result. The same is true if there is a history of domestic abuse or addiction.

4. Attorney Negotiated

In an attorney negotiated divorce, the parties hire attorneys who are problem solvers and those attorneys negotiate with each other while counseling with the parties to come to a fair and reasonable result. The parties are involved through a series of meetings with a goal of coming to an agreement. If directly negotiating is too difficult, the attorneys may separate the parties and caucus. If the negotiations fail you proceed to trial.

5. Litigation

The majority of divorces start out as the litigated model. The most difficult part of divorce is coming to agreements on child custody, property and spousal support. You want a skilled attorney who can negotiate but not be too combative. Most family law attorneys fit the bill.

If you’ve tried negotiating, mediating and more compromise and still have no agreement, you’ll have no choice but to let the judge decide. At that point, your attorney should try to “win” as much as possible for you. Remember that the judge knows very little about your family situation. Trial is a very big risk for both parties. The judge may decide several issues in your favor but the one you care most about you may lose.

You should carefully weigh your options. Try to make honest and fair decisions with your spouse. But be prepared, if necessary, to litigate.