Adversarial Divorce

The adversarial process for divorce may or may not entail the filing of a civil action in court. Often adversarial divorce begins when one spouse unilaterally obtains legal counsel and asks the attorney to prepare a separation agreement. The attorney will typically skew the separation agreement in favor of the attorney’s client, anticipating that there will be haggling over the terms of the agreement. The attorney may also advise the spouse to take certain unilateral actions to improve his or her stance in case a lawsuit is filed. These actions may include things such as removing money from joint accounts, retrieving and copying documents without informing the other spouse, changing the locks if one spouse has left the house, etc.

When the separation agreement is delivered to the second spouse, the second spouse must decide whether to retain legal counsel or simply sign the agreement. Since the agreement is often skewed, the second spouse must typically obtain an attorney to negotiate the terms. In an adversarial divorce, the attorneys communicate the terms of offers and counteroffers to try and reach a compromise agreement. The spouses may be instructed not to discuss the terms of the agreement with their spouse.

Separating Together attorneys do not participate in the adversarial process for divorce and have chosen to restrict their law practices to the collaborative approach. Adversarial divorce is appropriate when one spouse has already retained a lawyer who uses the adversarial approach or in some cases in which a significant mental health issue, substance abuse, or domestic violence is present and no suitable collaborative process can be fashioned with the consent of both spouses.