Greater Confidentiality is One Benefit of Eschewing Marriage-Ending Litigation
by Michael Heath
Mediation and collaborative divorce are attractive ways to end a marriage since they cost less to administer, take a shorter amount of time to complete, allow spouses to remain in control, and usually conclude with a more amicable ending. Another advantage is that they give the couple more privacy than traditional divorce.
A Not-So-Private Divorce
In traditional divorce one spouse hires a lawyer who files a petition for divorce with the county court. Within thirty days the other spouse is served papers as notification of the petition. These papers could be served wherever that spouse is: home, workplace, or anywhere the server finds the person. The two legal teams then begin the discovery process of gathering documents such as bank statements, investment portfolio statements, home appraisal, children’s scheduling details and more. There could be the exercising of court powers such as depositions, subpoenas, motions, etc. Although most law firms are very professional at keeping information confidential, several people that the couple hardly know will be building the case file.
Once all the information is organized and dissected, the lawyers are ready to negotiate for the spouses. Ninety to ninety-five percent of all litigated divorces settle before going to court. However, if a settlement cannot be reached the case could end up in front of a judge. Court is a public arena, and anyone is allowed to sit in through the proceedings.
More Privacy with Courtless Mediation or Collaborative Divorce
Mediation and collaborative divorce negotiation sessions occur prior to submitting any paperwork with the court. The goal is to reach a divorce agreement first. In other words, the sessions are completely courtless. Here, a more informal discovery process is employed. Instead of turning over all documents requested by law firms, the spouses create their own file that they share during the negotiation sessions. Since the court is not involved there are no papers served, depositions, subpoenas, etc. The divorce agreement is completed in the private office of the mediator or one of the collaborative attorneys. There is no court attendance.
Keeping It Between the Couple
There are many reasons why anyone would want to restrict access to their personal information. For example, older couples who spent a lifetime building an investment portfolio may be uneasy about sharing such sensitive information with people who are basically strangers. They can keep those documents private when mediating or using collaborative attorneys. Any couple in a failed marriage who seeks greater privacy should consider an alternative to divorce litigation like mediation or collaborative divorce.