Learn about the methods that might help you avoid going to court in your divorce.
Can I Get a Divorce Without Going to Court?
Let us make it clear now—even though most states allow you to get a divorce judgment without going to a courthouse, some necessitate that you see the judge. If you are able to settle your issues in beforehand, your court appearance can be shortlived, instead of hours, or the days that it takes in a contested divorce case. If you can, you and your spouse might try to settle your issues on your own, or you can make use one of the methods of (ADR) Alternative Dispute Resolution.
Option 1. Marital Settlement Agreement
If you are on good terms you and your spouse can make a list of your marital issues and try to reach a solution on each of them. It’s good to do a little research in advance to learn more about the issues you’ll need to talk about, so you do not exclude anything. Usually, divorce issues can include any or all of them:
- Division of property and debt
- spousal support or alimony
- child(ren) custody, and
- child(ren) support.
When you both reach an agreement on every one of your divorce-related issues, you need to have a divorce lawyer honor your settlement by creating a Property Settlement Agreement. This typically contains important clauses, along with the terms you’ve come to. Keep in mind though, you and your spouse can’t use the same lawyer—you need to have your own lawyers look at the agreement for you.
Option 2. Mediating Your Divorce
A favorable method of ADR is Mediation. Mediators are skilled and experienced professionals (usually lawyers or child custody professionals) who help each spouse in working through their disagreements. The spouses will produce the mediator with documents (like tax returns) and details ahead of time and speak with the mediator as often as you need to come to a settlement. To come to a written agreement, the objective is to decrease the settlement terms.
Mediation is generally a lot less draining than a contested divorce. Discussions are somewhat casual and typically takes place at the mediator’s office. And even though the couple can have their attorneys with them, it’s not a requirement, which adds to the cost-efficiency of the mediation process. (Actually, having attorneys at the meeting can sometimes be ineffectual, especially if an attorney is aggressive.) The mediator needs to receive payment, but the cost is typically divided.
Option 3. Collaborative Divorce
Collaborative divorce is one other type of ADR. It’s comparable to mediation in that the objective is to reach a settlement, but it is structured differently.
Collaborative divorce does not involve a mediator or other 3rd party. Instead, the spouses each have an attorney, and the four take part in group discussions with the goal of coming to an agreement. Attorneys that practice collaborative law typically has unique training in these areas. And to guarantee that they retain their attention on a settlement, the law in a lot of all states, if not all of them, won’t allow them to represent the spouses again if the negotiations fail.
Collaborative law is based in a “team” concept. Each participant is required to work as a “team” to come to an agreement. Any professionals that participate in the process (like property appraisers, accountants, and child psychologists —wherein custody is a concern) are required to be impartial and agreed to by each spouse.
People are inclined to choose collaborative divorce instead of mediation if they are more content with an attorney representing them in the stage of the settlement process. But don’t forget, if you can’t come to an agreement, you will have to begin the legal divorce process with new and different attorneys. This might mean a considerable added expense, since the new attorneys will have to become familiar with the case, from the beginning.
Option 4. Divorce Arbitration
Divorce arbitration is another type of ADR and is commonly used by couples that don’t think they’ll come to a settlement but require someone to determine their issues outside of the usual court process. Conversely, mediation and collaborative divorce are suited to getting your case settled, the goal of arbitration is for the arbitrator to determine the matter and issue a decision, almost like the judge would after a trial. (Divorce arbitration might not be offered in every state, speak with a local attorney to determine if it’s practiced in your state.)
Arbitration has advantages instead of a court trial. You and your spouse are allowed to decide who the arbitrator is. Whereas in court, you can’t decide on your judge. Additionally, you can choose to ease the typical rules of evidence. For example, you can agree to allow the creation of a witness’s sworn written statement, instead of them appearing in court. In addition, you will work as a team to schedule dates, times, and duration of your arbitration discussions. That is an extravagance you won’t have in court, where contested divorces can stick around for over a year, and you might spend hours every time you’re there, simply waiting to see the judge.
The big disadvantage of arbitration is the decision is irrevocable and final. If there is some impropriety on the arbitrator’s role, you generally can’t appeal. In a court trial, you can appeal mostly as a matter of course. In addition to your lawyers getting paid, you will also have to pay the arbitrator. This can get expensive, specifically with the more complicated cases.
Can I Get Divorced Without a Court Appearance?
Although you have settled your case, you still are required to file a divorce complaint or petition or with the court to dissolve the marriage legally. Typically, which spouse files the complaint bases the divorce on no-fault grounds), Like “irreconcilable differences.” In the states that don’t need a court appearance, you’ll have to submit the necessary forms and documentation. These usually are available at the court’s website. If all is in order, the judge can approve the settlement and issue a final ruling of divorce.
If your state expects a court appearance after you have completed the initial divorce filing procedure you will notify the court clerk that your case has been settled. The court will note the case as “uncontested,” and will grant you an accelerated court date. Usually, you will make an appearance before the judge for around 15 minutes, confirming the reasoning for the divorce, and answering questions concerning the agreement. To reiterate, you can typically find helpful information procedural processes on the court’s website.
It does not matter which direction you decide to go with your divorce, think about speaking with a knowledgeable family law attorney, who can help you with the process.
Pandolfi, Joseph. “How to Divorce Without Going to Court.” Www.divorcenet.com, Nolo, 30 Nov. 2017, https://www.divorcenet.com/resources/how-to-divorce-without-going-to-court.html.
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