Divorce and Out-of-Court Proceedings: Alternative Dispute Resolution

The thought of you and your spouse going through a divorce is bad enough. Having to deal with a court trial to decide who gets the furniture only intensifies the stress. 

Though television glorifies trials, most legal disputes never make it that far. A settlement outside of court proceedings can resolve most. Divorces are no different.

Here is a quick primer on divorce and out-of-court proceedings.

Alternative Dispute Resolution and Divorce

Not all divorces have to go to court. Resolve your divorce through informal negotiations between you and your spouse using out-of-court alternative dispute resolution (ADR). You can address property divisionchild custody, and child support.

These proceedings help create a voluntary settlement between the parties. They can establish healthier communication habits. This is helpful if you have a continued relationship, like sharing children. Most couples resolve their divorces before they go to a judge or jury. ADR can also reduce the chances you have to go back to court to try to change orders a judge has imposed.

Saving time and money on the divorce process can lessen the mental health impact of divorce. With less stress, you and your children can settle into your new lives and routines more quickly.

The types of ADR available for couples include mediation, collaborative divorce, and arbitration.

Mediation

Divorce mediation is a cost-effective alternative to the traditional divorce litigation process. Mediation uses a neutral third party to help the divorcing couple negotiate the terms of their settlement agreement. The mediator tries to encourage open communication. Often the couple learns tools to help them communicate in the future. This is helpful if the couple shares minor children and needs to maintain a relationship.

The mediator gives no legal advice and will not tell you what to do. They resolve all issues, such as property division, spousal support or alimony, and child custody.

This process may take a few meetings but is less time-consuming than a traditional divorce. The parties don't need to hire their own legal counsel. It is advisable to consult a family law attorney to help you prepare for the mediation.

Mediation is more cost-effective because you avoid the costs of hiring a divorce lawyer to negotiate for you. Settlements reached during mediation are more likely followed than those imposed by a court order from a judge or jury. You may also never have to step into a courtroom.

Collaborative divorce

Collaborative divorce is the next type of ADR used in divorce. Here, the divorcing couple each hires their own attorney who specializes in collaborative law. The parties sign an agreement not to go to court.

Their attorneys will guide the negotiation process with the couple and provide legal advice to their clients. If needed, the couple will negotiate a fair property division and address spousal support. They will also agree on child custody, a visitation schedule, and child support.

This may sound like mediation, but a collaborative divorce requires the use of an attorney, whereas mediation does not. Like mediation, the process is often shorter than a traditional divorce and costs less.

Arbitration

Divorce arbitration is a more structured form of alternative dispute resolution. The parties and their attorneys agree on an arbitrator, who is a neutral third party, to hear their case. The case proceeds much like a formal trial. The parties make opening statements and present evidence and their arguments. The arbitrator will rule on the division of property and marital accounts. While some states allow arbitrators to make child custody decisions, others do not.

The arbitrator's decision in a divorce case is not always final. The parties could agree to binding arbitration, where the arbitrator's ruling would be final. The parties may still be able to resolve key issues before a court at a later date.

Most out-of-court divorce settlements need some level of court approval. The arbitrator's ruling may need to be submitted to the family court before the divorce is final. Your attorney can tell you what the law is in your state.

Is Alternative Dispute Resolution Right for You?

If you and your spouse decide to end your marriage, ADR is one option for resolving any ongoing disputes. Depending on several factors, ADR may be a beneficial tool in resolving your divorce. Consider the degree to which you and your spouse dispute key issues. Can you work together to resolve those issues? ADR may work for you.

Some states require divorcing couples to attempt some form of ADR before proceeding in family court, so understanding your options is a good idea. ADR processes are less adversarial and casual than the traditional court setting. This may encourage early settlement. You and your spouse can actively resolve key divorce-related decisions with mediation and collaborative family law. Otherwise, a judge or jury may make those decisions.

ADR is a collaborative process. High-conflict divorces, or those where the parties have a volatile relationship, may not be good candidates for ADR. You have to work together and be willing to compromise to resolve the divorce. If you are in fear or have experienced domestic violence or child abuse in your marriage, ADR might not be the best option.

Learn More About Divorce and Out-of-Court Proceedings by Talking to an Attorney

Going through a divorce, whether inside or outside a courtroom, is emotionally and legally difficult. It's a good idea to contact a skilled divorce attorney who can guide you through the process, explain the law, and recommend prudent next steps. Only an attorney can give you legal advice and protect your rights.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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