Let’s clarify something upfront—although some states allow you to obtain a divorce judgment without setting foot in a courthouse, others require you to appear before a judge. But if you’re able to resolve your differences in advance, your court appearance can be a matter of minutes, rather than the hours, or even the days that are involved in a contested divorce trial. You and your spouse can attempt to settle your issues by yourselves, or you can utilize one of the methods of Alternative Dispute Resolution (ADR).
If you and your spouse are on good terms, you can itemize your marital issues, and attempt to reach a meeting of the minds on each one of them. It would be wise to do some advance research to learn about the topics you’ll need to discuss, so you don’t omit anything. Typically, divorce issues include any or all of the following:
Once you’ve come to an agreement on all of your divorce-related issues, you should have a divorce lawyer formalize your settlement by preparing a Property Settlement Agreement (also known as a Marital Settlement Agreement). This will normally contain important legal clauses, in addition to the terms you’ve reached. Remember though that you and your spouse cannot use the same attorney—you should each have your own lawyers review the agreement on your behalf.
Mediation is a popular method of ADR. Mediators are trained professionals (typically lawyers or child custody experts) who assist the spouses in working out their differences. The couple will provide the mediator with information and documents (such as tax returns) in advance and meet with the mediator as often as necessary to reach a settlement. The goal is to reduce the settlement terms to a written agreement.
Mediation is ordinarily much less stressful than a contested divorce. Sessions are relatively informal and often take place in the mediator’s office. And although the couple can have attorneys with them, it’s not required, which adds to the cost-effectiveness of the mediation process. (In fact, having attorneys present can at times be counterproductive, particularly if an attorney is combative.) You will have to pay the mediator, but that cost is usually shared.
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, the law in most—if not all—states won't permit them to represent the spouses in future court proceedings, should 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.
Divorce arbitration is yet another tool in the ADR kit and is often utilized by couples who don’t believe they’ll be able to settle their dispute, but want someone to decide their issues outside of the normal court process. Whereas mediation and collaborative divorce are geared to settling your case, the goal of arbitration is for the arbitrator to adjudicate the matter and issue a decision, much as a judge would after a trial. (Divorce arbitration may not be available in all states, so check with a local attorney to find out if it's practiced where you live.)
Arbitration has benefits over a court trial. You and your spouse get to choose the arbitrator. In court, you can’t pick your judge. Also, you can decide to relax the usual rules of evidence. For example, you might agree to allow the production of a witness’s sworn written statement, rather than having the witness appear in person. Additionally, you’ll work together to set the dates, times, and duration of your arbitration sessions. That’s a luxury you don’t have in court, where contested divorces can linger for over a year, and you can spend hours each time you’re there, just waiting for a judge to become available.
The major drawback of arbitration is that the decision is binding and final. Barring some impropriety on the arbitrator’s part, you ordinarily can’t appeal. With a court trial, you can appeal almost as a matter of course. Also, in addition to paying your lawyers, you’ll have to pay the arbitrator. This can get pricey, particularly with complex cases.
Even if you’ve settled your case, you must file a divorce petition or complaint with the court to formally dissolve the marriage. Usually, whichever spouse files the complaint bases the divorce on no-fault grounds (reasons), such as “irreconcilable differences.” In states that don’t require a court appearance, you’ll have to submit the required documentation and forms. These are often available online, at the court’s website. If everything is in order, a judge will approve the settlement and issue a final judgment of divorce.
If your state requires a court appearance, then once you’ve completed the initial divorce filing process you’ll alert the court clerk that you’ve settled your case. The court will mark the case as “uncontested,” and will give you an expedited court date. Ordinarily, you’ll appear before a judge for fifteen minutes or so, verifying the basis for the divorce, and answering some questions about the agreement. Again, you can probably find helpful procedural information on the court’s website.
No matter which route you choose to take with your divorce, consider consulting an experienced family law attorney, who can help guide you through the process.