When a marriage is ending, things can be complicated. You dealing with a ton of actual issues to resolve, and there are also a lot of emotions involved. It is easy to be overwhelmed or for the process to balloon into an overwhelming situation. Unfortunately, there are plenty of people out there who will contribute to making it harder than it has to be.
Just this morning, I heard a radio advertisement from a local divorce attorney. Listening to the advertisement, it sounded like the only way to complete a divorce was to go to court and fight out every detail. This advertisement made me angry because there are so many ways to avoid going to court and having a judge make decisions for you. Going to divorce court should be the last resort, after all other options have been tried. Once you go to court, both parties lose all control over the outcome. Thankfully, there are many ways to resolve a divorce without going to a judge for your decisions.
(Note: in many states, there is some sort of court appearance required. This doesn’t mean that the judge is deciding things, but rather that the court appearance is how you finalize and record the divorce.)
Kitchen Table Divorce (Do It Yourself)
This is the least expensive and most civilized way of handling a divorce. The two parties sit down at a quiet location, without distraction, and preferably with a significant quantity of their favorite non-alcoholic beverage. Kitchen tables are good, but some prefer a more impersonal location like a library conference room.
The two parties explain how they would like to see the divorce unfold and state their ideas about the division of property and care of children. Then, there is discussion and compromise to come up with a solution that works for both parties. Sometimes, children are invited to the portion of the conversation that pertains to them. Including children can be rewarding, but it can also be risky.
The kitchen table divorce works best for short marriages, with few assets and debts, and no children. Once you move into children, longer marriages, and more significant assets or debts, kitchen table divorces are less likely to result in equitable agreements, either because the couple has missed one more major considerations or because one party is specifically trying to get a better end of the deal. You can read more about the possible pitfalls of a kitchen table divorce at the @Divorce blog.
Depending on your state, you may be able to file your divorce online, represent yourself in court, or hire a third-party to present your agreement for approval.
Mediation is the process where the two parties hire an independent, third-party to help them work through the issues of the divorce. Mediation is no legally binding, and the mediator does not make any recommendations. They help keep the conversation focused and suggest different strategies for finding solutions to tricky issues. Mediation can occur in person, over the telephone, or online, and you can meet with the mediator together or separately.
In some cases, a trusted counselor, clergyperson, or other party may serve in the role of mediator. This can be tricky if they have strong personal feelings or an allegiance to one party.
You can do mediation with or without having attorneys involved. If you have difficulty saying what you mean, or you get flustered under pressure, then having your attorney speak for you can be helpful.
Mediation is not a good choice if both parties aren’t acting in good faith or if there is a history of abuse.
Let The Lawyers Work It Out
If it is clear that the two parties aren’t going to be able to come to an agreement, even with the help of a mediator, then the next step would be to have the two lawyers work out an agreement. In this situation, the two parties talk with their lawyers about what they hope to see in an agreement and the lawyers do the actual negotiating. This is helpful if one person in the marriage is significantly louder, more persuasive, or more intimidating. The downside to letting the lawyers negotiate is that the lawyers only know as much as they’ve been told, and they can’t get every detail and nuance. It’s also expensive to have the lawyers handle the bulk of the work.
Once the lawyers have some up with some sort of tentative plan, then they go back to their respective clients and see where there is agreement and disagreement. This results in a lot of back-and-forth that doesn’t happen with face-to-face mediation.
These are three ways to avoid having your divorce go to a judge for decision-making. All three will, almost always, result in a better outcome and less stress. Divorce court should be the last possible option when ending a marriage.