DIVORCE
The type of case you will have depends on various factors. I generally see three types of cases . . .

THE UNCONTESTED CASE This preferred approach involves you talking with your spouse about the property division, custody, parenting time and all support matters and reaching an agreement. I will only represent one of you. I will prepare all the legal pleadings which reflect the agreement reached between you. The other party and possibly their own counsel will review the pleadings, which if signed by all will have your divorce completed in a few days. You will not have to appear in court. Usually the first step is to schedule an appointment before beginning property division, separating, etc. Be realistic–this takes two cooperative and communicating parties to pull off. If there are drug or alcohol concerns or your untrustworthy spouse may hide or sell assets, this is not the approach to take–see below “The Difficult Case.” Spent a lot of time, if possible, listening to what your spouse wants. Be careful not to promise anything to the other party before speaking to an attorney-- you may not realize the legal and financial effects of your oral agreements. If you later learn your error and then go back on an agreement, this can create feelings, which makes your case more expensive and difficult to settle. It usually creates hard feelings and may make your case more difficult.

THE CONTESTED BUT COMPOSED CASE These cases are not resolved quickly but are also not unduly expensive. Perhaps there are complex assets or difficult property division questions. Perhaps time needs to be taken to more carefully review all the financial and legal ramifications of custody and support. However, these are generally handled with composure by all involved.

THE DIFFICULT CASE When the other side has a history of not keeping their word, not playing fair and certainly not fighting fair; if you are a victim of domestic violence; if your spouse has a drug or alcohol problem or friends and family are gearing them up for a fight; the worse thing you can do is announce your intentions and let them procure a tactical advantage through filing first. Figuring out how to best start the divorce is often crucial to your eventual outcome. These are also called “high conflict cases.” Because these cases are so emotional it is critical for you to have a lawyer who is well grounded and who can be a wise counselor about what to fight over. (See the story, The Seasoned Samurai Warrior).
 

There are four methods or ways to resolve a case. Sometimes a blending of resolutions is involved . . .

LITIGATION The traditional, and still most frequently used approach, is to start by filing pleadings (usually a Petition and Temporary Motions) and having them personally served on the other party. The advantage of this approach is that it gives you the quickest access to the judge who can address the most serious of problems. The filing and service of pleadings has often been called a “declaration of war.” The disadvantage of this approach is that it often aggravates a difficult situation and may make it more difficult to reach a settlement.

MEDIATION A mediator is a neutral third party who will meet with you and the other party to help you settle your case. Mediation is confidential. The mediator’s job is to get the parties to reach an agreement, not decide what is fair. Every county in Oregon recognizes or provides for mediation. Most court mandated mediation does not allow attendance by your legal counsel. The advantage of mediation is that it can reduce legal costs. The disadvantage is that without their legal counsel you may not understand the ramifications of your mediated “agreement.” Some people don’t do well in mediation without an advocate.

ARBITRATION An arbitrator is a neutral decision maker who is appointed by the court or agreed upon by the parties. Arbitrators receive evidence and hear testimony about your case before making a decision. An arbitrator’s decision can be binding or non-binding. Arbitration may resolve your case in a less expensive fashion than a formal judicial hearing. The disadvantage is that arbitration, when appealed, simply serves to delay resolution of the case.

COLLABORATIVE (See “The Difficult but Composed Case” above). This is an approach in more complex and occasionally high conflict cases that combines the use of legal counsel, mediation, and other experts that may be needed such as accountants or counselors. The lawyers, parties and other professionals exchange documents, schedule their own settlement conferences and work toward reaching consensus before mutually agreeing on the final settlement terms. The collaborative attorneys then file stipulated pleadings which resolve all disputed matters. This of course, requires participation by your spouse’s attorney. There are lawyers who proclaim they are “collaborative” lawyers who may even belong to a “collaborative lawyers association”. This doesn’t mean they will truly be a collaborative lawyer. My office welcomes referrals to other law offices that, in my experience, truly handle cases in an efficient and professional manner designed to keep costs and emotional stress at a minimum.

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