Divorce can be a challenging process for both parties. Divorcing spouses may have vastly different expectations about asset division, child custody, and child support. While not easy by any stretch of the imagination, divorcing spouses can make the process less painful, less costly, and less time-consuming if they can agree on all these issues.
What are the alternatives of divorcing in court? If the parties can get along, or at least tolerate each other, then it may be possible to obtain a collaborative divorce. In the alternative, the parties may be able to avoid divorcing in court by settling all matters before trial via mediation or arbitration.
What Is a Collaborative Divorce?
Collaborative divorce is the least combative alternative of divorcing in court. It reduces conflict and costs, as well as the length of time and complexity of the divorce process. To have a successful collaborative divorce, both spouses must put aside their differences and work together.
How Does a Collaborative Divorce Work?
In a collaborative divorce, each party has its own divorce attorney. However, the attorneys are not there for adversarial purposes. In collaborative cases, your divorce attorney guides you through the legal aspects of your divorce with an eye toward compromise. For some complex issues, it is common for both parties to seek the assistance of financial, medical, or child welfare professionals.
If the parties can agree to every aspect of the divorce, their collaborative divorce attorneys will draw up and submit the final settlement to the family law court. The only function of the court is to review and sign off on the agreement.
Why Get a Collaborative Divorce?
Unlike a traditional adversarial-style divorce, collaborative divorce professionals understand that divorce is a complex personal experience. A successful outcome requires input from multiple perspectives whether it be legal, financial, or health-based. Collaborative divorce prepares you to deal with the emotional challenges associated with divorce and can greatly facilitate a healthy transition to your new life.
Collaborative divorce has many advantages, including:
- Facilitates successful co-parenting;
- Forces you to deal with economic realities in an open and non-adversarial way;
- Helps identify mutually shared values and priorities;
- Maximizes consensus;
- Promotes creative and non-adversarial problem-solving;
- Improves parental coordination and communication after divorce;
- Focuses on emotionally healthy outcomes as opposed to a shallow peace or scorched-earth mentality; and
- Minimizes the risk of future conflict.
In addition, ask yourself whether you want your divorce to be a matter of public record. Typically, courts publish divorce records online. These records are accessible to potential employers, snoopers, data collections, the media, and identity thieves. Even if you settle amicably with your spouse, it won’t purge the record of any embarrassing allegations and counter-allegations made along the way.
Collaborative Divorce May Not Be For You
Collaborative divorce is certainly the least combative alternative of divorcing in court. However, it is not a cure-all solution for everyone. Collaborative divorce has its limits and strengths. It may not be appropriate when:
- One or both spouses suffer from a mental illness or substance abuse problem;
- Domestic violence is present;
- One or both spouses lack the capacity to speak freely about matters related to the divorce including income, medical, and personal information; or
- One or both spouses are likely to conceal information, especially information related to assets and finances.
In addition, collaborative divorce differs fundamentally from traditional adversarial litigation in many respects. Those without an open mind and willingness to elevate cooperation over personal interests may not see success. Instead, mediation or arbitration are two other means of getting divorced without having to go to court.
A third alternative of divorcing in court is mediation. Mediation is an informal conflict resolution process frequently ordered by family law courts. Unlike a traditional adversarial process, the mediator serves as a neutral third party that facilitates agreement between the parties. Like collaborative divorce, each party will be present with their own attorney. The attorney’s job is to guide a divorcing spouse through the intricacies of applicable law and ensure that any proposed resolution or compromise is in the best interest of their client.
The mediation process begins with the mediator reviewing the pleadings and familiarizing themselves with the facts of the case. After a brief introduction, the parties may remain in the same room and negotiate, or they may go into separate rooms along with their attorneys. If separate rooms are chosen, the mediator then goes back and forth between the two rooms relaying settlement offers and counteroffers. Mediation typically lasts for several hours if not an entire day. Costs are normally split equally between the parties.
If the parties can agree on all issues in the divorce including asset division, spousal support, child custody, and child support, then the mediator will record the agreed-upon terms in a written marital dissolution agreement. Each party then signs the agreement, and a lawyer files it with the court for approval and entry of the final divorce order. In the event one or both parties disagree with the proposed settlement agreement, adversarial litigation resumes.
Arbitration is another alternative of divorcing in court. Its main advantages over a court hearing are speed and cost. However, unlike a collaborative divorce and mediation, arbitration is adversarial. Arbitration is essentially an informal private trial. Records do not become public as they do in traditional divorce litigation.
The process begins when the parties select an arbitrator to hear their case. Arbitrators are typically retired judges or lawyers. Next, the arbitrator holds a hearing that is akin to a court hearing, but much less formal. Both parties (or their attorneys) present their case. After both sides are heard, the arbitrator will issue a decision. If the parties have agreed to binding arbitration, then a displeased spouse is stuck with the decision. If the parties have not agreed to binding arbitration, then a displeased spouse may go back to court and request a traditional adversarial divorce trial.
An Experienced Family Law Firm That Focuses On You
Are you wondering, What are the alternatives of divorcing in court? If you are considering a divorce and want to better understand your options, we can help. Since 1977, Blado Kiger Bolan, P.S., has helped spouses find creative and amicable solutions that reduce the time, stress, and cost of traditional divorce litigation. If you have questions regarding alternative dispute resolution, and how we can help, contact us today for a consultation.