A number of procedural models are available to a couple going through a physical separation, divorce, or other family-related conflict, to help them resolve the issues between them. The models vary in the amount of attorney and court involvement, conflict and cost to the couple. Read more about the models for divorce in Wisconsin.
(These materials are for informational purposes only, to help you recognize your legal rights and responsibilities. They are not a substitute for speaking with an attorney regarding your specific circumstances.)
In the pro se model, parties do not hire attorneys to help them negotiate an agreement, or process any required legal documents with the court system. They negotiate their agreements on their own, which is why this model is frequently referred to as the “kitchen table” model. If parties are divorcing, they prepare and file all the necessary documents by themselves, including the initial summons and petition, any motions and affidavits, financial disclosure statements, written agreements, and the final judgment of divorce.
In many areas of the state, the county court system has form documents available to parties who are proceeding pro se. The parties may also use books or internet resources for information and assistance with the process. In the pro se model, the parties negotiate and draft their final divorce agreement, and then present it to the court for approval. If they are unable to reach agreement on all issues, they should be prepared to gather the information the judge will need to decide the issues, present their case to the court by calling witnesses, presenting documentary evidence as appropriate, and telling the court why their requests should be granted. The judge or family court commissioner will then make the final decisions.
In the traditional litigation model of family law, typically each party hires an attorney who advocates for that party’s position. Negotiation occurs, generally through the attorneys, and most cases do end with an agreement. However, if the parties are unable to resolve their differences and reach an agreement, they may turn to a judge to make the final decision after a court proceeding, or hearing, in which the parties’ attorneys present evidence and make argument to the judge.
Parties may experience the following advantages to the traditional litigation model:
- An attorney’s advice and counsel as to what is a reasonable position within the Wisconsin statutes and case la
- Assistance in advocating for what they want in the action
- An ability to get a resolution of the issues through the court system, if they cannot reach an agreement
Parties may also experience the following disadvantages in the traditional litigation model:
- A loss of control over the negotiations, including the tone of the negotiations
- A loss of privacy about their lives and personal finances
- Frustration at the fact that a stranger (a judge) is making decisions about their lives which will affect them and their families for years
- Anger and bitterness toward each other, especially if they go through a court hearing to get resolution of the issues
- Astronomical attorney fees and costs
I have practiced family law for 33 years, and have handled many cases in the traditional litigation model. However, I believe that clients are better served if they are able to resolve their issues without resorting to the court system.
Mediation is a voluntary problem-solving process in which the parties hire a neutral third party to help them negotiate an agreement. The mediator does not advise or represent either party, or make decisions for the parties. Instead, the mediator assists the parties in the following tasks:
- Identifying the issues between them
- Collecting all necessary information to address the issues
- Developing options
- Discussing the advantages and disadvantages of each option
- Identifying their common interests
Identifying their needs, and understanding the other’s needs
Reaching an agreement both parties can accept
The primary function of the mediator is to manage the process for the parties, so that they can reach an agreement in a more cooperative and less combative manner. Parties who use a mediator may still appear pro se in any court action, such as a divorce or legal separation. If either party wishes to have legal advice, he or she consults with a separate attorney. Parties who reach agreement with the assistance of a mediator may still use their attorney/s to draft the final agreement for the court system.
I have over 200 hours of training in mediation and collaborative law, which applies mediation principles, and currently serves as a mediator for the Dane County Bar Association’s Case Mediation Program. I have helped many couples reach agreements in their divorce actions using the mediation model.
In collaborative law, a team of professionals helps parties reach a resolution of issues between them without the threat of litigation. Separating or divorcing couples may use collaborative law to deal with co-parenting, financial, legal, and emotional issues. The collaborative model also works well for unmarried couples who are separating and have property and/or child issues, and for couples who are crafting premarital agreements or who wish to purchase and own real estate together.
Each person retains an attorney who is trained in the collaborative process. The parties and their attorneys sign an agreement that includes promises to be forthright and committed to the process and to refrain from using the court system to resolve any disputes. The parties reach agreement on the issues between them in a series of settlement conferences with the two of them and their collaborative counsel, often with the assistance of other collaborative team members. If one party later decides to quit the collaborative process, then each party’s collaborative attorney must withdraw, and the parties must seek separate litigation counsel. This requirement provides strong incentive for all involved to remain in the collaborative model until all of the couple’s issues are resolved.
Other potential team members include mental health professionals who may serve as coaches or child specialists, and financial specialists. Although the parties work with a team, this model can be cost-effective, in that the entire team is focused on helping the parties reach an agreement. Attorney time and client funds are not spent preparing for court proceedings. Instead, the team works to help the couple reach a resolution of their issues which meets the needs of all family members while still minimizing the negative emotional and economic consequences of the separation or divorce.
I have substantial training in the collaborative family law model, and am deeply committed to helping my clients resolve their issues effectively, creatively, and in a mutually respectful manner, using the principles of the collaborative model. To find more information about collaborative law, please read my comments on my Collaborative Family Law Page, visit the web site of the Collaborative Family Law Council of Wisconsin at www.collabdivorce.com, as well as the web site for the International Academy of Collaborative Professionals at www.collaborativepractice.com.