Navigating a divorce can be intimidating, especially if the couple is hoping to get divorced without court. When you remove the oversight of a court case from a divorce, it can feel overwhelming to determine how and when things will be completed. Some many considerations and decisions need to be made by two people that are often at odds with each other and sometimes directly opposed and angry with each other. Finding common ground without a judicial determination can be difficult, especially when many of the decisions involve emotional issues such as child custody and financial obligations. However, many couples can get divorced without court and have successfully separated their lives while caring for their children and each other. Even couples that are unable to agree on anything can get divorced without public court appearances and battles through determinative processes that keep them out of traditional courtrooms. Divorce does not need to be a drawn-out court battle, and this article will explore options to avoid litigation for a divorcing couple.
This article will begin with the basics of divorce, including a definition and the grounds for divorce that are available to use. Next, it will walk through a list of decisions that will need to be made to hit all aspects of the couple’s joint life. This will ensure that any divorce will cover all the bases and help the couple move forward separately. After this, the article will walk through some of the various options available, starting with an explanation of a traditional, litigated divorce and moving thought ideas such as mediation, collaboration, or arbitration. With each option, this article will explore certain situations where the option may be appropriate, and others where another option may be better. This article seeks to provide an overview of the process and some of the options for divorce to help people looking to get divorced find an option that will work for them and their situation.
Divorce is the process by which a married couple legally separates from one another. Because marriage is a legally binding ceremony and has many tax, financial, and familial obligations, there must also be a legal way to dissolve the marriage. While this definition makes the process sound easy, many aspects and decisions need to be made throughout the divorce, and the process can be difficult for couples to navigate. It is much more than a simple ceremony where the marriage is declared dissolved and often involves many months of negotiation, evidence, and decisions. Divorce is not approached lightly, and the parties have often considered other possibilities before jumping in.
Grounds for Divorce:
Another important consideration when considering divorce is the grounds for divorce. Historically, many states required that the person filing for divorce had grounds to file, which meant that there had to be a specific and identifiable reason that it should be granted. While today it is still commonly accepted that a divorce may only result from a legal ground, there are legal grounds for divorce that do not include one of the parties being at fault. Because of this, there are two categories for grounds—fault and no-fault grounds for divorce. A divorce based on a fault ground means that one of the parties is claiming that the other parties harmed the marriage by their actions in some way. No-fault divorces are often carried out by parties who have decided that they are no longer capable of being married and would like to split. These can be brought by one party or may be brought by both parties together. Some of the most common grounds for divorce include:
- Irreconcilable Differences: This is the most commonly cited ground for divorce, and it is the standard no-fault ground. It can also be called incompatibility or irretrievable breakdown. This is the official way to tell a judge that your marriage has broken down beyond repair, and there is no hope for you to work it out. This is no fault because it usually means that the pair is just not working and have agreed to end the marriage. It can be alleged by both parties in a joint petition or it can be alleged by one party.
- Adultery: Adultery is a formal name for cheating. This means that one or both spouses were romantically involved with other people during the marriage. This is one of the most common forms of at-fault divorce, as it is the most commonly experienced and proven reason that couples will get divorced. Typically, if one of the parties is aware of the adultery, they have some proof to submit that it took place.
- Desertion: Desertion is another option to pursue an at-fault divorce. Desertion most commonly means that one of the parties left the marital home of their own volition and is not coming back. This must be for a period of time that is determined by a state’s laws, but it is usually six months to a year. Because there is a determination that one of the souses abandoned the other, this will be an at-fault divorce.
While several other grounds could be listed, these three are the most common options for people looking at a divorce.
When a person is bringing a divorce action, they will need to determine if they will pursue an at-fault divorce or if they would like to pursue an at-fault divorce against their partner. There are diffident circumstances where either option would be appropriate. However, at-fault divorces, while they may give the faultless party more recovery from the divorce, require the parties to prove the fault, which can mean longer proceedings and more complicated decisions. Additionally, it is often more difficult to prove in proceedings without court. For this reason, it is probably a better option for parties looking to avoid court to proceed with a no-fault divorce.
Considerations for Divorce:
As alluded to earlier, the process of divorce is not simply the dissolution of the marriage without any other determinations. Especially if the parties have children, there are a variety of other issues that will need to be decided before the couple can be officially divorced. Some of the decisions that couples will need to make include:
- Custody: Child custody is the determination of how much time the children will spend in each parent’s care. This will depend heavily on the involvement that each parent would like to have in their children’s lives and where each parent wants to live. However, most states will also evaluate a set of factors known as “the best interests of the child” to determine how to split custody. Custody can be equal, but it may lean more heavily toward one parent or the other depending on the factors set out. Parents can agree on custody unless there are endangerment concerns.
- Child Support: In addition to determining custody, the couple or the court will also need to determine which parent will pay the other child support. Many states will have a formula for determining this that accounts for the time spent with each parent, how many of the expenses for the children that each parent is responsible for, and the income of each parent. However, there may be room to make agreements about child support without judicial determination.
- Alimony: Alimony, also commonly known as spousal support, is the amount of money that one spouse pays to the other. This is most common in long marriages where one party has a much lower income than the other, especially if this is the case because they choose to stay home or make less for childcare or other reasons related to the marriage. This can be agreed to without court, but it is very uncommon for spouses who disagree to agree to alimony.
- Division of Property: This can be another point of contention between spouses. The parties will need to decide who, if either of them, gets to keep the marital home, how the personal property such as cars and furniture, will be divided, and how to divide assets, such as bank accounts or investments. These can be done through agreement; however, again it is difficult to agree when there is animosity between the parties.
- Division of Debts: The spouses will also need to determine how to divide any debts that they may have incurred together. This can be credit card debt or bills that the parties owe. This is often used as a bargaining tool when considering other types of support or division. One party may be willing to take on the debt for something if it means they pay less alimony or get to stay in the house.
These are the higher-level issues that will need to be decided to avoid a court date for the divorce. Other considerations may be things like changing the last name back to a previous name or orders for protection in cases of abuse. Cases with abuse will likely not resolve without court, which is why this article is not focusing too heavily on these instances.
Before getting into the options for avoiding court, it is important to have a basic understanding of the traditional process of divorce to help compare the other experiences with a traditionally litigated divorce. It is also important to note that traditional litigation can involve other options, especially mediation, to determine some portions of the final decision. Traditional litigation is not often only litigation. Litigation benefits from the involvement of the other systems and can make a divorce finalized faster when the parties have been able to agree on aspects of the divorce.
Litigated divorce follows a few steps to make the divorce final. These steps include:
- Petition: The first step in the divorce process is the petition. This is where the party that would like to initiate the divorce files the petition with the court The petition will list the reason for divorce and the way that the petitioning party would like the divorce to be finalized.
- Service: After the petition is filed, it must be served on the other party. The other party can either file an answer or counter-petition to ask for their ideas for the dissolution.
- Interim Orders: After the initial pleadings have been filed, the parties, the court will decide on any requests for interim orders. These can include orders for protection and temporary child custody orders. This allows the parties to live a somewhat normal life while the final decisions are being made.
- Discovery: After the initial hearing in the case, the parties will begin the discovery process. This is where the parties will exchange and examine a variety of information and evidence that will help shape the case. This is most often where the parties are required to share financial and other information to ensure that all determinations about support and other issues are determined correctly.
- Alternative Dispute Resolution: Dispute resolution processes may happen at any point in the case, but it commonly happens after discovery when the parties have a better picture of how the case will turn out. At this point, the parties may reach a full resolution and can end the case, or they may agree on certain pieces of the divorce but will still need to go to trial on any remaining factors.
- Deposition: Depositions are a form of discovery that allows the parties to question each other or other witnesses under oath to understand where the case is at and how the parties will testify. This is not a required step, but many parties choose to complete them to make sure they understand what will happen in the trial.
- Trial: After all the preparation, the case will go to trial on the remaining issues. Here, the parties will present their evidence to a judge who will decide how the case will be finalized.
- Appeal: If one of the parties is unhappy with the outcome of the trial, they may appeal. However, they will need to identify a mistake of law that makes the decision incorrect. It cannot simply be that they are unhappy with the result.
While each divorce will have its path to determine the outcome, a traditionally litigated divorce will follow the steps above for the most part.
Traditional divorce can be the best option in several situations. First, if there is abuse in the relationship, litigation is likely the best option, as it is the best way to get protective orders against the other spouse. Alternative options do not have the same ability or force to grant protective orders. It can also be valuable if one of the parties does not want to be divorced because it allows the other party to compel the dissolution between the parties. All other options will require at least agreement to participate in the process. Finally, traditional litigation may be the best option when one of the parties has unrealistic expectations. The formal discovery process may help to illustrate the realistic outcome of the divorce, which may make that party more amenable to the process or even the dispute resolution process with more realistic expectations.
Mediation is the most common form of alternative dispute resolution for divorce. It provides a space for the parties to come together and attempt to create a plan for their lives moving forward that is doable for the two of them and their children. Mediation, in its most basic form, is a type of formal negotiation session that is run by a third party called a mediator. It is a collaborative process, and the parties work together with the mediator to attempt to negotiate a resolution. This process is voluntary and nondeterminative, meaning that the parties will need to agree on both the process and the resolution to conclude the case at mediation. The process is also confidential, meaning that the parties and the mediator are not allowed to speak about what happens in mediation outside of the room.
Divorce mediation will often go through several stages. While each mediation will be unique and based heavily on the needs of the parties and their dispute, but they will often move through most of the following steps:
- Proposing Mediation: Before the parties begin mediation, one of the parties will need to suggest it. This can be a formal mediation request in a case that has already been filed in the court, or it may be an informal suggestion to the other party when they have only begun to consider the process. In some states, mediation is required to move forward with a divorce trial so that the court can see that the parties have made a good faith effort to settle the case.
- Choosing the Mediator: Because the process is voluntary, the parties can choose who they would like to have as a mediator. This can be through identifying a mediation group or finding one somewhere online. The parties will need to agree on the mediator or the process that the mediator will be chosen.
- Introductions: After choosing a mediator, the parties will meet with the mediator, who will introduce themselves and the process to the parties. This may take place on the day of the mediation, especially if the parties have already completed discovery before starting mediation, or it may happen earlier. The mediator will also establish any ground rules for the mediation, such as confidentiality.
- Statements of the Case: After introductions, the parties will have the opportunity to present their case to each other. They will give an overview of any evidence that they have and will present what they would like to see as the resolution. The parties are required to listen to the other party fully and not interrupt.
- Negotiation: After the parties present their cases, they will begin to negotiate. This may be done with the parties in the same room, or it may be with the mediator moving between the parties in separate rooms. This stage will continue as the parties trade options back and forth until they come to some sort of agreement.
- Agreement: Mediation will conclude with some sort of agreement. This will either be an agreement that will resolve the case completely, an agreement to resolve the case in part and litigate the rest, or an agreement that they will not be able to settle anything at mediation and will need to move forward with another option.
Mediation is often a good option for the parties in a divorce because it gives them the option to attempt to collaborate and resolve the divorce. It can be particularly good for parties that have already had some discussion about settling but need the extra push that a mediator can create. Finally, mediation is a good option for parties would believe they can reach an agreement and would like to resolve the divorce quickly. Mediation can also be helpful because it encourages the parties to work together to achieve a resolution, so many of the parties can keep a somewhat cordial relationship because they were able to create the plan together.
Collaborative divorce is similar to mediation in that it is a collaborative process where the parties will negotiate for a resolution. However, unlike mediation, there is no neutral third party to aid the parties in the negotiation. Instead, each of the parties will be represented by a collaborative attorney whose purpose is to advocate for their client. The lawyers sign an agreement that they will only represent during the collaborative divorce and will withdraw if the case needs to go to litigation or other dispute resolution. This process also involves the use of a team of specialists who will help negotiate for a party’s position in the divorce. A collaborative divorce typically follows the steps below.
- Proposing Collaborative Divorce: The first step, similar to mediation, is to propose collaborative divorce. Again, this process is voluntary, so the parties will need to agree to participate. Because of the financial burden that can result from a collaborative divorce, this decision should not be taken lightly.
- Hiring Attorneys: After the parties have agreed to the process, they will need to hire attorneys that are skilled in the collaborative divorce process. These attorneys are important because skilled attorneys can help the parties achieve the desired result. They can use mediation and negotiation skills to help the parties reach an agreement.
- Preparation: After the parties have hired collaborative attorneys, they will begin to prepare for the negotiation and begin to assemble their team. This is where the party and their attorney will discuss the outcomes they can realistically achieve and who they will need to help them do this. The team can include financial advisors and child life specialists, as this will help the parties understand the long-term implications of their decisions.
- Four-Way Meetings: A four-way meeting is the meeting where the parties will be negotiating with each other through their attorneys. There are usually a series of four-way meetings that will happen. At the first one, the attorneys and the team will agree that they will withdraw from the dispute if it has to go to court. This helps provide the parties with a motivating agreement to resolve the dispute through the collaborative process or face hiring a whole new team.
- Agreement: Similar to mediation, a collaborative divorce will end with an agreement that will resolve the case or with an agreement to go forward with litigation.
A collaborative divorce is a great option for parties that would like to resolve their divorce without facing litigation. The financial motivation of losing a team can help even the most difficult of parties work with the other party. The attorneys are also able to provide an accurate picture of what could happen at litigation to help temper overzealous or overconfident parties, which a mediator usually cannot do. Therefore, collaborative divorce can be a good option for instances where one of the parties has unrealistic expectations or where the parties need to understand the implications of their decisions in the long term.
Arbitration is another option for couples looking to avoid court in their divorces. Like mediation and collaboration, the process is voluntary, meaning that the parties have to agree to participate in the process. However, unlike mediation and collaboration, arbitration produces a binding decision that the parties must follow. Arbitration is determined by an arbitrator, a neutral, third-party decisionmaker, and it can be a single arbitrator or a panel of multiple arbitrators. Arbitration is also a more formal process and requires the parties to present their case to the panel. The arbitration will often include the following steps, which will look more similar to litigation than other forms of alternative dispute resolution.
- Agreement to Arbitrate: Because arbitration results in a binding decision, the agreement process is usually more formal than in mediation or collaborative divorce. The parties will usually sign an agreement that submits the dispute to arbitration.
- Choosing an Arbitrator: This may happen in the agreement to arbitrate, but the parties will need to choose an arbitrator or a way that an arbitrator will be appointed. In divorce, it is common to have an arbitrator with divorce and family law experience because they understand the process and the law that will affect the case.
- Preparation: Similar to the discovery process, the parties in arbitration will exchange information and prepare their case for the hearing.
- Hearing: The parties will present their case and evidence to the panel at a hearing. They will also be able to present what they would like to request for the final resolution.
- Award: The resolution of arbitration is called an award. After the arbitration hearing, the arbitrators will decide how to resolve the case and issue an award. The parties will then need to follow this award.
Unlike litigation, arbitration has little ability to appeal the result unless there was an issue with the arbitrator’s neutrality that affected the outcome. For this reason, the parties should be cautious of agreeing to arbitration if they believe it could produce a poor result. However, arbitration is a great option for parties who will be unable to settle but need the speed or convivence of arbitration. Additionally, arbitration is confidential, so parties that need to keep their divorce out of the public eye may benefit from using the arbitration process.
Private judging is another form of judgment that the parties may pursue in their divorce. A private judge will follow much of the process that traditional litigation will follow, but the decision-maker will be a private judge that the parties hire to decide the case. This type of resolution is most commonly used when the parties need to resolve the case privately and quickly.
On Their Own:
Finally, the parties can choose to resolve the divorce on their own. This is common when the parties can negotiate the terms completely on their own and is usually done in the most mutual of divorces where the parties have similar outlooks moving forward. The most common way to achieve a divorce this way is for the parties to file a joint petition with the court that outlines the way that they would like to handle child custody and divide the property. This is a good option when the parties can find common ground from the outset and can find a way to move forward as a team, although separately.
No matter what method that the parties choose to finalize their divorce, the best option will help them achieve a result that can benefit the parties and provide for their children adequately. Divorcing parties can find a way to separate without court, and the alternative dispute resolution world can help the parties move forward with their lives.