A divorce trial can be costly and time consuming. In many cases, the legal remedy through litigation is less advantageous for both parties. In fact, having a court decide the terms of a couple's divorce is very uncommon. But what are the alternatives to divorce court?
While a judge will still need to approve a settlement agreement established through other negotiation methods, the terms in their entirety are rarely decided by a judge or commissioner of the court. Nearly 95% of American divorces get settled outside of a courtroom. In some cases, the judge will hear specific terms the couple has yet to agree and render a decision accordingly. But, the more a couple can agree on outside of court, the better!
The choice to have a court decide any or all terms is often a last resort and ends with regrets for one or both sides.
There are numerous reasons why most American's seeking divorce are often advised or simply know that taking the case to court is less than advantageous.
- The issues of a divorce case are very personal. A trial is open to the public and a matter of public record. In most cases, the couple's divorce will be processed through a local circuit court in their residing county where friends and family may be more likely to learn sensitive details.
- The decisions affect the couple and their family for years to come. Few people want a third-party deciding terms pertaining to their children, money, home and residency.
- The amount of time between filing and a judge actually hearing the case is often prohibitive of an efficient resolution to a painful experience for both parties.
- The typical cost's associated with a trial are much higher than the national average cost of $30,000 to divorce.
But what happens when the couple simply can not agree on all or part of the terms of their future judgement?
If the couple reaches an impasse using traditional, offer - counteroffer methods with or without representation, and a settlement cannot be established then Alternative Dispute Resolution methods may be employed.
In many cases, a judge will require the couple attempt mediation, one type of alternative methods, before proceeding to trial. So, it's best to know all options in advance to avoid wasting time and money preparing for litigation when other methods could be more successful and/or required.
Alternative Dispute Resolution, also known as ADR, refers to individuals involved in a dispute coming to an agreement outside of court. ADR is a general term inclusive of processes like mediation, arbitration & collaborative divorce.
In some cases, ADR includes a neutral third party to aid in settling a dispute according to the specific method. However, other methods simply employ both parties working together towards common goals of a mutually beneficial settlement agreement.
Common Methods of Alternative Dispute Resolution
Mediation
In mediation, a mediator serves as the neutral third party, providing assistance to the parties reaching an agreement on specific issues or the entire settlement agreement. The settlement agreement, upon court approval, typically becomes part of the Final Judgement of Divorce approved by a judge. Common issues where mediation is most helpful are child custody, child support and maintenance (formerly known as alimony).
When an attorney is acting as a mediator, he/she cannot provide legal advice or act in any capacity as a legal representative to either party. An attorney representing either party does always typically attend mediation with their clients. But, in some cases it may be helpful or necessary.
The couple may elect mediation through a private mediation firm/mediator, hire an attorney who provides mediation services or be mandated by a court to utilize a court appointed mediator or mediation service inclusive of court approved mediators.
A mediator uses constructive techniques to aid in the process of negotiation. He/she does not make decisions regarding the dispute like that of a judge or arbitrator. Instead, the mediator utilizes a harmonized process designed to help the disputing parties find common ground useful in developing a settlement acceptable to both sides.
The most significant difference of mediation and litigation is that mediation if more likely to be forward thinking negotiations whereas a courtroom battle has a greater focus on past occurrences and fault.
Arbitration
An arbitrator is impartial but has the authority to make decisions after both parties present the facts of the case in a private hearing. The arbitrator is typically a retired judge or someone with a similar background who meets the legal requirements. After the hearing, the arbitrator issues what is known as an "award" that, before the arbitration, both parties agree to accept as the final decision regarding any issues brought before the arbitrator. It typically cannot be appealed.
In most cases, each party is legally represented during the arbitration, just as they would in a trial. However, the hearing is often less formal and the arbitrator more lenient with the process than a typical trial judge in a courtroom proceeding.
Arbitration is not open to the public. This makes arbitration a popular form of divorce for high profile or large asset divorces.
Unassisted Settlement Discussion
ADR may also include both spouses sitting down together (such as at the kitchen table) and developing their own settlement agreement without the help of a professional. They may still hire an attorney, but they do not rely on professional assistance, a judge or others to help them make decisions about the major issues commonly part of a settlement agreement. This works well because there are no better individuals to make the decisions about their family, assets and debts then the spouses themselves.
In order for the settlement terms to be enforceable by court order, the couple must file for divorce in the designated family or civil courthouse. The terms of the settlement must then be approved by a judge and made part of the Final Judgement of Divorce (also known as a Divorce Decree).
Caution: Many spouses seek legal advice or research state statutes and regulations in order to know their legal rights before they make any decisions. While many spouses agree on their settlement first then consult an attorney and/or investigate their legal options otherwise, if the agreed upon settlement is not satisfactory based on how the law applies to their potential case, they may want to renegotiate.
It's never easy to go back to the negotiating table after an agreement has already been established. Advice and knowledge before decisions are made prevent the majority of these situations from occurring.
Collaborative Practice
Another alternative to a courtroom battle is a collaborative divorce, also known as collaborative practice. It is a relatively new process (started in the early 90's) and not as popular as other methods like mediation.
A primary difference between the collaborative process and mediation is that it does not utilize a neutral third party such as a mediator to settle disputes; however, it is an alternative to the traditional methods and/or divorce by trial that is slowly gaining traction in the most states. There are now numerous attorneys trained in the collaborative law process. The parties should confirm their attorneys have training and experience in collaborative divorce practice before retaining them.
The practice involves both spouses and their legal representatives sitting together, typically in a conference room, to establish a mutually acceptable settlement. It often takes numerous meetings and includes experts. It isn't necessarily the most expeditious or affordable method and may take a year or longer.
The method is not meant to be adversarial. It is meant to settle the divorce through a positive process whereas experts and witnesses are called to aid the parties in the development of a settlement, all focused on attaining the best possible outcome for both parties.
Collaborative divorce involves each party's full attention to a satisfactory resolution. They must sign a "participation agreement" before they begin that includes numerous items about what they will and will not do along with the next legal process they will take if the collaborative method of divorce is unsuccessful.
If the case goes to trial after a collaborative process fails, each spouse's attorney must withdraw from the case and the couple must hire new attorneys.
What's best for you
Every couple has a unique set of circumstances. However, nearly anyone going through a divorce has a good deal of emotions that can affect the legal resolution. This can lead to adversarial legal remedies that are both costly and damaging to the couple and family. ADR can not only help the couple have more control over the terms of their divorce, but can also aid in a less negative experience, saving time, money and frustration.
If you think one or more of the above ADR methods may be useful, make sure any professionals you hire have the training and credentials for such methods or can refer you to local professionals who do.
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