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What Are My Options in a Divorce Besides Going to Court? 

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James Korman
October 21, 2013

The problems in family law are as old as civilization. (Ask Ann Boleyn about it.)

The solutions remain difficult. A courtroom may be the worst place to resolve a custody dispute. It is also rarely the best place to resolve the financial issues in a divorce case either. If there were some other effective mechanism to resolve the division of marital property, the allocation of marital debt, child and spousal support, and custody, there would be little, if anything, left to fight about.

Judges, lawyers, and legislators are aware of this.

It is likely alternative dispute resolution (ADR) will be mandated in an increasing number of courts. You may, for example, be required to go to co-parenting clinics or participate with a mediator or neutral case evaluator (NCE) when there is a custody dispute. There is also reason to believe that in the future an increasing number of custody mediations and arbitrations will be conducted by non-lawyers. A child psychologist, for example, might be better qualified to assess the needs and best interests of the children when the parties are looking for solutions. Whether it will be permissible for attorneys to be present will depend upon local practice. But even if counsel is excluded, you will not be prohibited from getting legal advice before you attend.

Another new innovation some geographically separated parents have tried is electronic visitation. The parents, between scheduled visits, have on-line audio and visual communication with the kids. It is, I suppose, better than a phone call but no substitute for a hug.

Back to ADR: Financial issues in a divorce can be mediated or arbitrated.

Mediation is a process by which a neutral third person tries to get the parties to agree. The mediation rules usually provide that, unless an agreement is reached, statements and concessions made during mediation will not be admissible in court. It is very common for family law attorneys to engage in a negotiation process that is also aimed at getting the parties to “yes.” The difference is that there is not usually a neutral third party facilitating the discussions. But there can be. Attorneys are increasingly turning to NCEs to assist in resolving cases. The NCE is usually an attorney who has expertise in the field or a retired judge. The NCE can assess the strengths and weaknesses of each party’s case and suggest compromise solutions.

Arbitration is a different animal. An arbitrator (again, usually an expert or a retired judge) hears the evidence and arguments presented by both sides and actually decides the issues. Arbitration can be binding upon the parties if the arbitration contract so provides. A judge, who is paid by the government, is, in essence, an arbitrator. The advantages of arbitration are that you can count on getting an expert to decide your case, and you and your counsel can set the schedule for the hearing. You are not subject to the problems of a congested and lengthy court docket. And, if the parties so agree, the rules of evidence can be relaxed. One situation in which that can be helpful is if you hire an expert. The expert can just render a written report rather than having to charge you for the preparation for appearance and the appearance to testify.

There can also be what we here call “the Washington Post factor.”  You may not want your personal life and your finances made public in a courtroom.  Mediation and arbitration can have the advantage of privacy. 

Another wave of the future might be something called “collaborative law.” Lawyers who specialize in this approach can be retained to try to settle the case. The attorneys commit to the settlement process to the point where they are precluded from participating in the litigation if settlement is not reached. There are pros and cons to this approach.

For most people who find themselves in the throes of domestic conflict, the sequence of resolution priorities should be the following:

  1. Exhaust every reasonable avenue to reconcile your marriage.
  2. See a lawyer to get the advice you need.
  3. Try to settle the case by direct negotiations with your spouse. (But only if you are reasonably certain the discussions will be productive.)
  4. See if your lawyer can negotiate a settlement, or if mediation will work.
  5. If all other reasonable options get you nowhere, you have to go to arbitration or to court.

But I’m thinking, let’s try medieval combat. It’s been a long time since anyone has given that much of a chance.