A court judgment is actually the least common divorce method
Reviewed by Thomas BrockReviewed by Thomas Brock
A divorce or legal separation doesn’t require a court hearing to decide how to divide property, who gets custody, and how often visitation can happen. Litigating a divorce in court is often a last resort and the least common way to resolve the logistics of a permanent separation.
Options for alternative dispute resolution (ADR) such as mediation and arbitration can help both partners reach solutions that they can live with in a private and less acrimonious way. ADR is required before you can get a hearing in family court in some states.
Key Takeaways
- Mediation is a more amicable and less expensive way to divorce than arbitration or litigation.
- Mediation doesn’t create legally binding outcomes unless you ask the court to approve your agreement.
- Arbitration and litigation are legally binding.
- You can still simplify the litigation process by limiting it to your most contentious issues if you and your spouse can resolve some but not all elements of your divorce through mediation or arbitration.
What Is Mediation?
Mediation is a process in which an impartial professional helps both parties reach mutually agreeable solutions to the issues in their divorce or separation. Mediators help both parties discuss their preferred outcomes but they don’t make decisions.
You can try to resolve matters such as division of assets, division of debts, child custody, child support, and alimony through mediation. Any issues that you agree on in mediation will be memorialized in a nonbinding memorandum of understanding that your mediator draws up.
Mediation is the least expensive way to end a marriage if there are any issues between you because the only person you have to hire is the mediator. You don’t have to hire legal counsel but you might want to do so. The mediator must be impartial. They can’t offer either party any advice.
Important
You can always try mediation first and potentially resolve certain issues there before taking your remaining issues to an arbitrator.
What Is Arbitration?
Arbitration may be your next best option if you and your partner can’t agree on outcomes. Mediation is nonbinding but arbitration allows for judgments. You and your partner must first agree on the choice of an arbitrator who will act as a private judge. An arbitrator needn’t be an actual judge. They can be an attorney or accountant, among other options.
Each partner may present evidence during arbitration and employ witnesses to support their position. This can make it feel similar to a trial and more contentious than mediation. The arbitration agreement must carefully follow detailed requirements. A public judge must ultimately approve your arbitration agreement to make it legally binding.
Pros of Mediation and Arbitration
- They can save time and money: Litigating your divorce in court could draw the proceedings out for a year or more. Alternative dispute resolution could wrap up your divorce within weeks. Avoiding trial can help preserve assets even if you hire legal counsel because legal bills for appearing in court can be substantial.
- They help keep family matters private: Litigation becomes a matter of public record. Mediation and arbitration are more likely to maintain your family’s confidentiality.
- They can be less stressful for children: Taking child custody issues to court means leaving decisions up to a judge. The outcome may not be what the children or parents would prefer. A trial is also usually more acrimonious and can leave children feeling caught in the middle or hostile toward both parents.
- They allow both partners to retain control over outcomes: A judge might resolve your issues in litigation in ways that neither you nor your partner like. Mediation and arbitration give you more control.
- They’re not all-or-nothing: You don’t have to resolve 100% of your issues outside of court for mediation or arbitration to make your divorce or separation easier and less expensive.
- They don’t preclude going to court later: You can take any unresolved matters to court if you can’t work out certain issues in mediation or arbitration.
Cons of Mediation and Arbitration
- You might still want to hire a lawyer for advice: ADR may be less expensive than going to trial but might still want to hire legal representation to help you get the best outcomes. Hiring a lawyer at an hourly rate may save you money over paying a retainer fee.
- They won’t succeed if both partners aren’t willing to work toward solutions: Mediation and arbitration require compromise.
- You can’t appeal an arbitrator’s decision: The court will generally uphold the arbitrator’s decision even if one spouse is unhappy with it.
- It may be easier to hide assets and liabilities: Going to court may be a better solution if either partner is concerned about hidden income, assets, or liabilities resulting in an unfair settlement. A court can have financial records subpoenaed.
- They may not be appropriate when abuse is involved: A judge’s orders or decree may be the best option for protection if physical violence, emotional abuse, or substance abuse plays a role in the divorce.
- The outcome of mediation isn’t legally binding: You must get a consent order from a judge for your agreement to be enforceable.
Are There Alternatives to Divorcing in Court?
Yes. You can divide assets, seek alimony, make child custody and child support arrangements, and finalize your divorce without a court trial. You can get professional help with these matters through mediation or arbitration and then you can get a consent order to make your decisions legally binding after you’ve reached an agreement.
Do I Need a Divorce Attorney If I’m Not Going to Court?
No. You can rely on the mediator or arbitrator to help you and your spouse agree on the details of your divorce. These professionals can’t give you advice, however. You may not get the best outcomes without legal representation, especially if your spouse is hiring a divorce attorney or family law attorney and you aren’t.
How Much Does Mediation Cost?
Mediation costs less than litigation but the exact cost will depend on several factors. They include the mediator you choose, the number of hours that your mediation takes, and whether you hire an attorney to advise you.
The Bottom Line
It’s a common misconception that marriages can’t end without long, protracted court battles. The processes can vary a little by state but all jurisdictions have some options in place to help you avoid litigation.
Unfortunately, not all divorces are suitable for mediation or arbitration. The processes can be unproductive if your marriage is particularly contentious. It may be difficult to agree now if you and your spouse could barely ever agree on anything during your marriage. Consider consulting with a legal professional first before committing if this is the case.
Read the original article on Investopedia.