Options for Divorcing Couple

How do these issues get decided?
There are a number of procedural models which may be used to reach
resolution of these issues. The methods vary in degree of attorney and
court involvement, conflict and cost. Every issue in a divorce case may be
resolved by (1) the parties reaching an agreement or (2) having a
contested hearing after which a judge or court commissioner makes a
decision. These models include:

In collaborative divorce, each party hires an attorney and all four work together in a cooperative,
non-adversarial process with a mutual goal of reaching a fair settlement of all issues. The parties
and attorneys communicate and negotiate directly with one another in structured four way
settlement meetings. Binding commitments are made by both parties and their respective
attorneys to voluntarily disclose all financial and other relevant information, to proceed
respectfully and in good faith in settlement negotiations and to refrain from the threat or use of
litigation. The parties agree that they will not go to court and if anyone wants to do so, both
attorneys must withdraw. If required, experts are brought into the process as neutrals who are
jointly retained by the parties. In addition, collaborative divorce may involve a team approach;
possible team members include financial advisors and mental health professionals. The parties hire
attorneys as settlement specialists. This process encourages creative problem solving, win-win
negotiations, and resolutions that meet the needs of all members of the family. International
experience indicates that collaborative divorce produces better results for children, greater
satisfaction of the parties, and parties who are less likely to return to litigate future issues in
court. More importantly, the parties are directly involved in the process and retain control over
the outcome. For more information the collaborative law process, please visit the Collaborative
Family Law Council of Wisconsin, Inc. website.

In mediation, the parties hire a neutral third party to assist them in reaching agreements. The mediator
can provide information about the legal process and guide a discussion to help resolve issues. The
mediator may or may not be a lawyer. The mediator does not represent either party and cannot
provide legal advice. Mediation may occur with parties who have hired attorneys or parties who are
not represented by attorneys. The parties communicate with one another directly in the presence of
the mediator. The goal of mediation is to allow parties to reach agreements that meet the needs of
both parties and their children without the financial and emotional cost of a court battle. If the parties
proceed in mediation without attorneys, they must still prepare all the required forms for the court,
though a mediator may help prepare forms for the parties.

In a pro se divorce, the parties do not hire attorneys, they do it themselves. They proceed on their
own to draft and file the necessary court documents including the summons and petition, financial
disclosure statements, any motions, the marital settlement agreement, if any, and the final judgment
divorce. In some areas, pro se form kits are available at the courthouse. For example, in Milwaukee
County, pro se packets are available for a small fee in Room 307a. The husband and wife must either
work out an agreement together or present their legal issues to the court. If an issue is not agreed
upon, the parties have to be prepared to act as their own lawyers, which means they must call
witnesses, ask questions of the opposing party and tell the court why their request for specific
orders should be granted.

In the traditional divorce, both parties hire attorneys. The attorneys provide legal advice and
represent the positions of their client in negotiations and court hearings. This model is an adversarial
process in which each attorney advocates positions based on the personal needs and viewpoints of
their client. The parties communicate through their attorneys, rather than directly with one another,
regarding their positions, proposals and counterproposals on the issues in their divorce. The process
may involve the use of formal legal procedures, known as “discovery” to secure financial and other
relevant information. This may include the use of depositions (a formal taking of testimony before a
court reporter) and the subpoenaing of documents or other material believed to be relevant to the
issues. Each party may hire experts to support their positions. Experts may include psychologists,
real estate and personal property appraisers, business valuation specialists, accountants, and other
investigators. If the parties dispute the legal custody or physical placement schedule for their
children, the court will appoint a third attorney, called a guardian ad litem, to participate in the case
as an advocate for the “best interests” of the children. Ultimately, if agreements are not reached,
parties and other witnesses testify before a Judge who makes decisions on each disputed issue.
Most litigation divorces are eventually settled after substantial time, money and emotion has been
spent in conflict.