Mediator or lawyer in divorce

A divorce requires a well-considered choice

Those seeking information about a mediator or lawyer in a divorce are usually not at the beginning of a calm orientation process. In many cases, a conversation has already taken place, a decision has been made, or something has changed that has made the situation untenable.

The choice of a route is not just a legal or financial consideration. It is also a choice about how you want to get through the coming period, what you need for yourself to reach good agreements, and how you want to shape the relationship with your partner and, if applicable, with your children after the divorce.

What we see in practice: clients who seek legal advice early—not to start a procedure but to understand their position—generally make better-informed decisions about the route they choose. A consultation is not an obligation to open a file, but a moment to gain clarity.

Would you like to discuss your situation confidentially first? You can schedule a consultation to obtain legal clarification without further work following.

Three routes in divorce: mediation, collaborative divorce, or individual lawyer

In the Netherlands, there are several ways to arrange a divorce. The three most common routes differ in who represents your interests, how agreements are reached, and how the procedure unfolds.

1. Mediation

In mediation, both partners jointly engage a mediator. The mediator is a neutral facilitator who represents neither party. The goal is to reach agreements in a joint process regarding the divorce, the divorce settlement, maintenance, the division of assets and, if applicable, the parenting plan.

If both partners reach an agreement, the mediator records the arrangements. A lawyer then files the petition with the court. Mediation requires that both partners are willing and able to negotiate together. If that is not successful, other routes are possible.

A disadvantage of mediation that emerges in practice: if one of the partners has less knowledge of the financial situation, the assets, or the legal consequences of choices, there is no independent advisor to compensate for that. The mediator guards the process, not individual interests.

2. Collaborative divorce (with individual lawyers)

In a collaborative divorce, both partners each have their own lawyer, but the parties work together constructively and avoid court proceedings as much as possible. The lawyers consult with each other and guide their clients in drafting a divorce settlement and, in the case of children, a parenting plan.

This is a fundamentally different process than a high-conflict divorce. Collaborative divorce combines the advantage of individual legal guidance for both parties with a constructive approach. In practice, we see that this route is appropriate when parties wish to make agreements in good consultation, but each also feels the need for an individual legal advisor to guard their interests and independently assess proposals from the other side.

A related form is collaborative divorce where, in addition to lawyers, other professionals can be involved, such as a financial specialist or a coach. This route is used less frequently in the Netherlands than standard collaborative divorce, but it can offer a solution in complex situations.

3. Individual lawyer, including in disputes

If parties cannot agree on essential points, or if one of the partners has already engaged a lawyer, the procedure can be submitted to the court. The lawyer files a petition on your behalf and represents you at the hearing. The judge decides on the points where no agreement has been reached.

This does not have to concern the entire divorce. In many cases, some subjects are settled through consultation, while a court ruling is requested for other subjects, such as the amount of child support or the division of the home.

Individual legal guidance does not have to mean conflict

A common misunderstanding is that engaging an individual lawyer means a high-conflict divorce is imminent. This is not the case. In practice, we see that a significant portion of cases where both partners have their own lawyer is completed without court proceedings.

The difference with mediation is not the tone or the willingness to consult, but the structure: you have someone who analyzes your legal position, independently assesses proposals from the other side, and advises you on what is legally feasible and wise. This can actually contribute to a better-substantiated settlement about which both parties have full clarity.

Particularly when children, complex assets, a business, or pension claims are involved, it is wise to know your legal position before making agreements, regardless of whether those agreements are ultimately reached through consultation or via the court.

Children, parental authority, and maintenance: what needs to be arranged?

If there are minor children, there are a number of legal subjects besides the divorce itself that must be arranged, regardless of the route you choose. For many clients, this is the most significant part of the divorce.

• Parenting plan. If you have minor children, you are legally obliged to draw up a parenting plan. This records agreements regarding care and upbringing, the division of care, the obligation to inform and consult, and child support.
• Parental authority. In most cases, both parents retain joint parental authority over the children after the divorce. In special circumstances, a parent can request sole parental authority. This request is assessed by the court.
• Child support. Child support is calculated based on the needs of the child and the financial capacity of both parents. Parties can make their own agreements on this; if they cannot reach an agreement, the judge decides.
• Spousal maintenance. If one of the partners has insufficient income after the divorce to provide for their own living expenses, a claim can be made for spousal maintenance. The duration and amount are partly determined by the length of the marriage and the earning capacity.
• Care arrangement and contact. The parenting plan includes agreements on how the children divide their time between both parents. This is also referred to as the care arrangement or contact arrangement.

Agreements regarding children and maintenance require extra care, regardless of which route you choose. For more information, see our page on divorcing with children.

When does each route suit your situation?

There is no single route that is best for every situation. Depending on the circumstances, mediation, collaborative divorce, or guidance by an individual lawyer may be most appropriate.

Situations where collaborative divorce or an individual lawyer is appropriate

• The interests of the parties diverge on essential points, such as the division of the home, a business, pension equalization, or prenuptial agreements.
• There is a difference in legal knowledge or financial insight between the partners, making an independent legal advisor important.
• Your partner has already engaged their own lawyer.
• There are international elements: a marriage concluded abroad, a foreign nationality, or assets abroad.
• There are complex issues surrounding the children, such as a difference of opinion regarding parental authority, the care arrangement, or the amount of child support.
• Previous attempts at consultation or mediation have not led to an agreement.

Situations where mediation is an option

• Both partners are willing and able to reach agreements through consultation, even on difficult subjects.
• There are no significant differences in legal knowledge or financial insight that make an individual advisor necessary.
• The divorce is relatively straightforward in terms of assets, child arrangements, and maintenance.

Depending on the circumstances, a combination is also possible. A lawyer can guard your interests in the background while you participate in a mediation process. Every situation requires its own assessment.

How does the process with an individual divorce lawyer work?

When guided by an individual lawyer, the process usually proceeds in the following steps. The exact order and duration depend on your situation.

1. Intake interview. The lawyer maps out your situation: prenuptial agreements or community of property, children and the necessary agreements on parental authority and care arrangements, assets, pensions, and any international elements.
2. Legal advice. The lawyer analyzes your legal position and advises on the possible routes, the consequences of choices, and the expected timeline.
3. Guidance during negotiations. The lawyer negotiates on your behalf or guides you during consultations regarding the content of the divorce settlement and the parenting plan.
4. Recording agreements. The agreements are legally recorded in a divorce settlement. Agreements regarding children, maintenance, parental authority, and the care arrangement are recorded in the parenting plan.
5. Petition. The lawyer files the petition with the court. In the case of a divorce by joint petition, you usually do not need to be present at a hearing.
6. Ruling and registration. After the court order, the divorce is registered in the civil status registers.

Three situations from our practice

A consultation process that stalled

We were approached by a client whose mediation process had failed. Both parties had participated in the process for months but had not reached an agreement on several points. The mediator had terminated the process.

At that moment, the client was without legal guidance, while the ex-partner engaged their own lawyer shortly thereafter. We stepped in at that point, mapped out the legal situation, and guided the client through the further settlement. The points on which no agreement had been reached were submitted to the court.

A point of attention in these types of cases is timing: the earlier legal advice is sought, the better the legal position can be mapped out before agreements are made or recorded.

Divorce with a complex asset structure

A client came to us with a divorce question where the ex-partner had a business with a private limited company (BV) structure, participations, and pension under own management. The client had insufficient insight into the composition and value of the assets and doubted the completeness of the information shared during consultations.

We mapped out the legal situation: which asset and pension components are involved, which legal routes are available, and what the consequences were of the choices on the table. Based on that analysis, the client was able to take a well-founded position on the division of assets and the maintenance question.

In cases with a complex financial structure, independent legal assessment is important before agreements are made, regardless of the route the parties choose thereafter.

International separation with a jurisdictional question

We guided a client through a divorce where both partners had different nationalities, the marriage was concluded abroad, and assets had been accumulated in multiple countries. The client had previously received legal advice that had not fully addressed the international aspects of the case.

The core of the issue lay in the jurisdiction of the court and the applicable law: which legal system applies to the division of assets, and which court has jurisdiction for the divorce procedure? By first answering these questions legally, it could be determined which route was appropriate in the given circumstances and what consequences that had for the settlement of assets and child arrangements.

In international separations, it is essential to address the jurisdiction and choice of law question early in the process. The choice of forum can have significant consequences for the content of the final agreements.

Written by Carla Simmelink, family law attorney at Simmelink Lawyers.

Trust and quality

Simmelink Lawyers is affiliated with the Dutch Bar Association.
Read more about our reviews or see how we work via our working method.