Divorce doesn't have to be a long, drawn-out process involving multiple court hearings and a trial. There are ways to avoid that outcome, if you and your spouse can work together. There are pros and cons to these different methods—and they won't all work for everyone—but they're at least worth considering if you want to avoid the time, hassle, and expense of court battles in your divorce.
It's important to point out that when we're talking here about divorce without court, we really mean divorce without a trial. You might still have to show up briefly in court, as we'll explain below.
In order to learn whether you'll be able to avoid a court appearance in your divorce, it helps to understand when going to court is part of the divorce process.
It used to be that you always had to go to the court clerk's office in person to file your divorce papers and start the legal process of ending your marriage. Now, however, you have other options. Some states allow you to file your divorce papers by mail, and more and more state and county courts have set up e-filing systems. Where this is available, you can typically download the forms from a state or county court website, fill them out, and then file them electronically. (Learn more about the process of filing for divorce in your state.)
In a traditional contested divorce—when you and your spouse aren't able to resolve your disagreements about the issues involved in ending your marriage—you'll eventually need to go to court to have a judge decide those issues for you. Divorce trials can last for hours or even days. And even before the final trial, you'll often have to attend several court hearings on interim issues, such as temporary support, requests to appoint child custody evaluators, and disputes over financial disclosures and other evidence.
When you can file for an uncontested divorce, you might still have to appear in court for a final hearing, depending on where you live. Several states (and some counties in other states) allow you simply to submit your divorce settlement agreement and other paperwork for a judge's approval. Assuming everything is in order, you'll usually receive the signed divorce decree or judgment in the mail.
But even if you have to show up in court to finalize an uncontested divorce, the hearing will be brief—typically about 15 minutes. Ordinarily, the judge will simply ask you a few questions to make sure that you meet the requirements for divorce in your state and that you understand the agreement you signed.
There are different ways to avoid a contested trial in your divorce. You and your spouse can try to reach a settlement agreement on your own, or you can use one of the methods of "alternative dispute resolution" (ADR), especially mediation.
If you and your spouse can communicate well and cooperate, you can try to reach an agreement about all of the issues in your divorce. You'll want to start out by making lists of all of your assets and debts, so that you have a clear picture of your finances. It would also be wise to do some advance research to learn about the topics you'll need to discuss, so you don't overlook anything. (Below, we've provided links to help you with that process.)
Typically, divorce issues include at least all of the following:
If you're able to reach an agreement on all of these issues before you file your divorce papers, the court will consider your divorce to be uncontested.
If you and your spouse haven't been able to work out a settlement agreement on your own, you can turn to mediation for help. In divorce mediation, a trained, neutral professional will work with your and your spouse to identify the sticking points and help you find solutions.
Sessions are relatively informal. They often take place in the mediator's office, although online mediation is another option that's increasingly available. And although the spouses may have attorneys with them in the sessions, it's not required. In fact, having attorneys present can at times be counterproductive, particularly if an attorney is combative.
At the end of the process, the mediator will typically prepare a written document that reflects any of the agreements you and your spouse have reached. That document can then be the basis for the settlement agreement that you'll submit to the court.
There are pros and cons to mediation. Although the cost of mediation varies, a mediated divorce is almost always much cheaper than a contested divorce, which usually involves hiring lawyers for both spouses. But mediation isn't appropriate in some situations, especially in cases involving domestic violence, a high degree of conflict, or a serious imbalance of power.
Collaborative divorce is another form of ADR. It's similar to mediation in that the goal is to reach a settlement, but it's structured differently.
Collaborative divorce doesn't involve a mediator or other intermediary. Rather, the spouses each have an attorney and participate in "four-way" sessions with that goal of reaching an agreement. Attorneys who practice collaborative law often have special training in this area. And to ensure that they keep their focus on settlement, states generally won't permit them to represent the spouses in future court proceedings if the negotiations fail.
Collaborative law is grounded in a "team" approach. All participants are obligated to work together to reach an agreement. Any experts that take part in the process (such as accountants, property appraisers, and child psychologists —where custody is an issue) must be neutral and agreed to by both spouses.
People tend to opt for collaborative divorce over mediation if they're more comfortable having an attorney represent them in all phases of the settlement proceedings. But remember, if you're unable to reach an agreement, you have to start the formal divorce process with new attorneys. This could mean a significant additional expense, because these new lawyers will have to familiarize themselves with the case, from scratch.
Some couples who don't believe they'll be able to settle their disputes—but want someone other than a judge to decide for them—may turn to yet another ADR tool: divorce arbitration. Unlike mediation and collaborative divorce, which are geared to settling your case, an arbitrator will consider your case and issue a decision, much as a judge would after a trial.
Arbitration has some benefits over a court trial, including:
At the same time, there are serious drawbacks to arbitration:
If you want to get an uncontested divorce and avoid a trial, there are several resources to get help: