I Want a Divorce. Where Do I Start?

An Analysis of Collaborative Law, Mediation and Litigation

By Alanna C. E. Williams

More and more people are using the internet as a research tool in learning how to obtain a divorce in Virginia. Much of the information on the internet is confusing and many times overwhelming. This article was written to give you some insight on different approaches which are used by the legal system in Virginia to obtain a divorce and resolve property issues.

Collaborative Law is an alternate dispute resolution procedure whereby you and your spouse each retain counsel and any experts that may be necessary such as financial analysts, property valuators, business valuators, and counselors. The parties and their attorneys work in a non-hostile and less stressful environment in an attempt to reach an amicable settlement for themselves and their children. The parties generally will attend several settlement meetings with their attorneys and respective experts until such time as a written Separation and Property Settlement Agreement is agreed upon and executed. During the settlement meetings, the lawyers are there to assist their clients in explaining the legal ramification of specific issues, as well as advise their clients on creative resolutions specific to their unique problems.

Mediation is also an alternate dispute resolution procedure whereby the parties meet with a neutral mediator. A mediator is a third party, who may or may not be an attorney, and who helps the parties achieve an amicable resolution through mutual negotiation and compromise. Most mediators are certified and although they will not provide either party with legal advice, they use creative methods to find middle ground between the parties in order to help the parties achieve a settlement agreement which mediators generally call a “Memorandum of Understanding.” We do recommend that if you participate in mediation, that you retain an attorney who can provide you with legal advice and recommendations.

Litigation is the traditional method of obtaining a divorce whereby a party files a complaint for divorce in the circuit court; discovery is propounded; and, the parties present their evidence to a judge who decides issues of divorce, child and spousal support, and asset division. With this being said, most litigators use alternate dispute resolutions during the divorce, in an attempt to resolve the case without court intervention.

Most frequently asked questions:

What if my spouse and I try collaborative divorce but are unable to reach an agreement?

The contract of employment between you and your collaborative divorce attorney will require that you retain new counsel, and possibly new experts, should you be unable to reach a settlement agreement. The reason behind this is to encourage open dialogue between the parties, their attorneys and their experts.

My spouse has all our financial accounts under lock and key and I have no idea what assets we may have. If I know my spouse is trying to hide assets what do I do?

Collaborative law and mediation expect that both parties will exchange all financial documents openly and honestly in order to achieve a fair and amicable resolution. However, in reality many parties going through a divorce are angry and attempt to hide certain assets. In this case, we recommend that you retain an attorney experienced in litigation. Once your attorney files for divorce, he or she will have a number of options to locate the assets. This includes requiring your spouse to answer written questions and provide documents such as bank statements, investment records and other financial documents. The attorney also has subpoena power to obtain documents directly from financial institutions.

Do the attorneys at the Duff Law Firm provide collaborative law services?

No, all our attorneys are experienced litigators. We are also skilled negotiators and our goals are to settle cases rather than take them to trial. However, it is important to negotiate a settlement from a power of strength and not weakness. This means that we need to know what all the assets and debts are. We may need to employ experts to get certain assets valued. Once we are armed with this information we are in a position to have four-way settlement meetings or to retain a retired judge to mediate.

How is retaining a retired judge different from a certified mediator?

Instead of having numerous sessions over a period of time, this type of mediation is most often done over a single day. The attorneys participate throughout the entire mediation process, and for very complex cases, they often will have an expert, such as a CPA for tracing issues, involved in the mediation.

If we start the litigation process in order to find out our assets, can we still mediate with a certified mediator?

Absolutely. If you have children, unless there are unusual circumstances, Fairfax County Circuit Court requires the parties attend meditation for issues of custody and visitation before the Court will hear a custody case.