To begin, keep in mind that while some states allow you to obtain a divorce without ever attending a courthouse, others require you to go in front of a judge. If you can settle your disagreements ahead of time, your court appearance will only take a few minutes, as opposed to the hours or even days that a contentious divorce trial will take. You and your spouse can try to work out your issues on your own, or you can employ an ADR technique (ADR).
Solving Issues on Your Own
If you and your husband get along, make a list of your marital concerns and try to reach an agreement on each one. To ensure that you don’t forget anything, conduct some preparatory research on the things you’ll be talking. Any or all of the following are common divorce concerns:
- Assets and obligations are divided.
- alimony or spousal support
- custody of the children, as well as
- children’s assistance
Once you’ve reached an agreement on all of your divorce-related issues, you should have a divorce lawyer document your agreement by drafting a Property Settlement Agreement (also known as a Marital Settlement Agreement). This will normally have substantial legal clauses in addition to the terms you’ve committed to. Keep in mind, however, that you and your spouse cannot choose the same lawyer; you should each hire your own attorney to review the contract.
Choosing a Mediator to Help You Through Your Divorce
Mediation is a popular ADR method. Mediators are trained specialists who assist married couples in resolving their disagreements (usually lawyers or child custody experts). The couple will prepare materials and documents ahead of time (such as tax records) and meet with the mediator as many times as necessary to reach an agreement. The objective is to keep the settlement parameters to a documented agreement.
A mediated divorce is frequently less stressful than a contested divorce. Sessions are typically held in the mediator’s office and are relaxed. Although the couple can have attorneys present, it is not required, which increases the cost-effectiveness of the mediation. (Having attorneys there can be counterproductive at times, especially if the attorney is combative.) You will be responsible for paying the mediator, which is usually shared between the parties.
Collaboration to End Divorce
Collaborative divorce is another sort of ADR. The goal is to reach an agreement, which is similar to mediation, but it is structured differently.
In a collaborative divorce, no mediator or other third party is involved. Instead, each couple hires an attorney and attends “four-way” discussions to come to an agreement. Attorneys that practice collaborative law often have particular training in this area. Most, if not all, jurisdictions prevent them from representing the spouses in future court matters if the negotiations fail. This is done to keep them focused on the settlement.
The premise of working as a “team” underpins collaborative law. All players must collaborate in order to reach an agreement. Any professionals participating in the process (such as accountants, property appraisers, and child psychologists if a custody dispute exists) must be objective and accepted by both parties.
You’re more likely to select collaborative divorce than mediation if you’d rather have an attorney represent you throughout the settlement process. However, keep in mind that if you can’t agree, you’ll have to start the divorce process all over again with new counsel. As these new lawyers will have to learn the case from the ground up, this could result in a significant rise in fees.
Divorce arbitration is another tool in the ADR toolkit, and it’s frequently utilized by couples who don’t think they’ll be able to settle their differences but want a decision made outside of the usual court system. Unlike mediation and collaborative divorce, the goal of arbitration is for the arbitrator to decide the case and make a decision, much like a court would after a trial. (Divorce arbitration isn’t available in every state; check with a local attorney to determine if it’s used in yours.)
There are various advantages to arbitration over a court trial. You and your spouse decide on the arbiter. In court, you can’t pick your own judge. You can also choose to deviate from the conventional proof rules. You can, for example, agree to accept the presentation of a witness’s sworn written statement instead of having them come in person. You’ll also work together to set the dates, times, and duration of your arbitration sessions. That’s a luxury you won’t find in court, where contested divorces can go on for months and you can squander hours waiting for a judge to appear.
The most serious disadvantage of arbitration is that the decision is definitive and irreversible. Normally, you can only appeal if the arbitrator has acted inappropriately. It’s almost a guarantee that you’ll be able to appeal if you have a court trial. In addition to your lawyers, you’ll have to pay the arbitrator. This can be expensive, especially in complicated situations.
Is it required that you present in court?
Even if your case has been settled, you must file a divorce petition or complaint with the court to formally end the marriage. The divorce is frequently filed on no-fault grounds (reasons), such as “irreconcilable disputes.” In areas where a court appearance is not required, you must submit the necessary papers and forms. These can be found on the court’s website quite frequently. If everything is in order, a judge will approve the settlement and issue a final divorce judgment.
Once you’ve completed the original divorce filing process and your state requires a court appearance, you’ll notify the court clerk that your divorce case has been resolved. The case will be labelled “uncontested,” and you will be assigned a court date that is less than a month away. In most circumstances, you’ll spend around fifteen minutes in front of a court, confirming the divorce reasons and answering basic questions concerning the settlement agreement. The court’s website, once again, is expected to give procedural information.
Regardless of which route you take for your divorce, you should consult with a family law professional who can guide you through the process.
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