While divorce mediation, collaborative divorce, or other alternatives to court can’t guarantee a harmonious divorce, if you and your spouse commit to proceeding with one of these approaches and follow it in good faith, you are almost sure to avoid the terrible wear and tear of divorce court. In the process, you will also get a solution you can both live with more easily—and save yourselves quite a bit of time and money.
Going to court means you will have a trial in a public courtroom where the goal is to find a result that the judge thinks is appropriate. Bear in mind that a judge, who will have only limited information about you and your spouse, may or may not have the time or interest in attempting to tailor the best possible resolution to your situation. And a judge’s decree often produces unpredictable results that at least one of you will hate.
These alternatives to going to court all take place in a private setting in which the goal is to find an agreement acceptable to both of you. After all, you and your spouse know best the intricacies of the relationship you have developed during your marriage. And there probably will be no opportunity for anyone to testify in a trial about why “it is only fair” that one or the other of you should be awarded an object of art, the convertible car, or the family dog. The judge may find it irrelevant that late one night, you both agreed that when one of you got a college degree, the other one would be entitled to finish the required courses for a teaching credential. And the judge will never meet your child and form a personal opinion about the most fitting custody or visitation arrangement.
One of the worst aspects of the court system is that it gobbles up huge amounts of time for divorcing spouses—and for any lawyers they may have hired to represent them. The major reason is that the administrators who run the courts have goals similar to those of most business managers: They want to make the most efficient possible use of their employees. Having judges and courtroom staff sitting around waiting for the next case to arrive is not efficient. So the administrators schedule more cases than can possibly be handled at various hours of the day.
They know that some of these cases will be settled in the hallway outside of the courtroom. Others will be continued over to a future day because of conflicts in lawyer’s schedules, sickness, car problems, or some other unpredictable cause.
As a result of all this, the court may schedule 30 cases for a session beginning at 9 a.m. On most days, at least 20 of those cases will be settled the day before or out in the hallway on the morning of the hearing. Perhaps only ten of them will actually require a hearing—and every one of those will likely get heard. But every once in a while, most of the people involved in all 30 cases will show up and require a hearing before the same judge. Some will involve emergency issues that will get priority attention.
It is not unusual for attorneys involved in a case to arrive in the courtroom and announce: “If we can have just a few minutes with the judge in chambers, we think we can reach a total settlement of the whole case today.” The prospect of settling a case will woo some judges off the bench and into chambers for what is often more time than was predicted. When the noon recess arrives, cases that have not been heard that day usually are postponed to another time. Sometimes the calendars are so jammed, it will be a month or more before a new date is available.
For this and other reasons, taking your case to court involves a lot of sitting in the audience and wasting time. But even if you get lucky and are heard promptly in court at the assigned time on the scheduled day, the number of times you can be forced to come back to court to fight over relatively insignificant matters can stretch into hundreds of hours if either you or your spouse are determined to carry on a battle over every issue.
The bigger point here is that once you have filed an action for divorce in court, you lose control over how long the case may keep you embroiled in the process. Disputes over obtaining information through the discovery process, applications for changes in support or custody rulings, and appeals can force you to stay tied to your old marriage for years. And the time you spend waiting in a courtroom for the judge to hear your case can run into seemingly endless hours.
The financial benefit to staying out of court is probably obvious. Trial lawyers charge for their time by the hour, whether they are waiting in the courtroom or cross-examining a witness on the stand. The three alternatives discussed in this chapter involve almost no waiting time— and involve little or no time from lawyers. They also avoid many of the time-consuming paper shuffling used in the law to subpoena documents, take depositions, and argue over what are often silly legal issues. The parties involved or their lawyers produce the necessary documents, and everyone’s time is used in working out a solution rather than litigating.
The high cost of going to court. I have handled more than a dozen cases where lawyer fees for each side were more than $100,000. And I have seen very few where a lawyer charged less than $1,000 for a contested divorce. In most contested cases, fees will be at least $10,000.