No one marries with the intent that they will divorce someday. However, there may be a point in a relationship when it is clear that marital dissolution (i.e., a divorce) is inevitable. How the parties proceed after this point can make the difference between an amicable, peaceful conscious uncoupling and a nasty, drawn-out battle.
Even though a trial, complete with a judge and court-room setting is glorified on television, most cases do not make it to trial and are more commonly resolved with a settlement. Contrary to what some believe, a divorce does not have to go to court. Parties looking to divorce may resolve their dispute through informal negotiations by using out-of-court alternative dispute resolution (commonly referred to as ADR). These proceedings between you and your spouse along with your attorneys promote voluntary settlement though they can also include traditional court proceedings.
Several ADR processes that family law attorneys use are mediation and arbitration in lieu of proceeding to trial. These forms of dispute resolution are gaining in popularity and are shifting the role divorce attorneys play from representing their clients in a legal battle to acting as divorce mediators who help their clients achieve their goals. In order to determine which approach might be right for you, it’s helpful to understand the process each one entails.
The goal of mediation is for a neutral third party to help disputants come to a consensus on their own. In mediation, a professional mediator works with the conflicting sides to explore the interests underlying their positions. Parties in mediation find it effective at allowing them to vent their feelings and to fully explore their grievances.
Mediation sometimes requires the parties to sit in a room together, while other times the parties are in separate rooms and the mediator goes back and forth. This is typically referred to as Kissinger style shuttle diplomacy after it was used to describe the efforts of the United States Secretary of State, Henry Kissinger.
Mediation may be particularly helpful when parties have a relationship they want to preserve (e.g., family members, neighbors or business partners have a dispute) or when emotions are getting in the way of finding a resolution. An effective mediator can hear the parties out and help them discuss issues with each other in an effective and nondestructive manner.
Another form of alternative dispute resolution in family law cases is arbitration where a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues their case and presents relevant evidence, and then renders a binding or non-binding decision, depending on the type of arbitration entered into. Arbitration is less formal than a trial, and the rules of evidence are often relaxed.
Although used more often in civil litigation, arbitration is less often used in divorce cases. In marital dissolution cases, an arbitrator’s decision is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date. It is important to keep in mind that most out-of-court alternatives for resolving a divorce will still require some level of court approval.
Perhaps the most recognizable form of dispute resolution, litigation involves two parties facing off before a judge or judge and jury (Currently, Texas and Georgia are the only states that offer spouses the opportunity to litigate their divorce before a jury). During the trial of a divorce case, the attorney’s for each party present evidence on contested issues while the judge (or jury) is responsible for weighing that evidence and making a ruling.
Typical issues that arise in litigation are the determination of the separate property of a party, how to divide community property and liabilities as well as determination of the validity of a pre- or post-nuptial agreement. If children are present the custody arrangement, child and spousal support as well as the time sharing schedule of the children are often areas prone to increased litigation.
It is important to keep in mind that all of the alternative dispute resolution processes are available in settling any ongoing dispute such as property division, child custody or support. However, the effectiveness of these alternatives in contrast to a full trial depend on factors such as how willing the parties are to work on resolving these issues and the general degree of animosity between them.
These choices can make the decision to divorce a complex field. If you are considering filing for divorce, the Certified Family Law Specialists at Lonich Patton Ehrlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich Patton Ehrlich Policastri for further information. Also, please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.