Do I have to go to court to get a divorce?
Do I have to go to court to get a divorce?
It’s estimated that 40 to 50% of all marriages in the United States will end in divorce. While some couples will not be able to decide how to divide their property or who should care for the children without going to court, there are several alternatives to litigation. In fact, avoiding court can be done through an uncontested divorce, mediation or arbitration.
1. Uncontested Divorce
By far the simplest and least expensive option for avoiding court and getting an expedited divorce is through an uncontested divorce. In an uncontested divorce, the spouses agree on the major divorce issues including property division, debt division, spousal support, child support and child custody.
While all couples can file an uncontested divorce, couples who have been married a substantial length of time, who have substantial assets or debts, or who have minor children may find that they are unable to agree on the major divorce issues and will need to seek additional legal counsel.
Mediation is the second method that can be used to negotiate a divorce agreement without going to court. Mediation allows you and your spouse to meet with a mediator or neutral third party to identify, discuss and resolve divorce issues.
A mediator may or may not be a lawyer, but they generally do not provide legal advice. A mediator is simply a person who is skilled at helping couples resolve their differences. Couples who use a mediator may still want to hire a divorce lawyer who can review any legal agreements and potentially draft legal documents after the mediation is completed.
Mediation may be a good option for couples who have a good relationship, who agree that divorce is a good idea, and generally have a willingness to work together. Mediation may not be suitable if there has been domestic abuse, if one spouse is attempting to hide financial information, or if both parties are not willing to work in good faith to develop solutions that will be beneficial to both parties.
Mediation is also not legally binding, which means that the success of the mediation process will depend entirely on the willingness of a couple to work together. Additionally, because the mediator is not necessarily a lawyer and may not have the legal obligation to outline each party’s legal rights, it is possible for parties to make agreements that might not be in their best interest.
Prior to hiring a mediator, it’s important to review the costs. Mediators generally charge an hourly rate. Be sure to get all agreements for payments in writing and make sure that all fees are clearly outlined before signing a contract.
Arbitration is the third method that can be used to avoid litigation and going to court. Arbitration allows you and your spouse to present your issues to an arbitrator, who will then review the information and make a decision that is generally legally binding.
Although the arbitration process is similar to taking your case to court, it is actually a private dispute resolution process. In fact, the process can be more informal then a court hearing, with both sides agreeing to the rules of the arbitration.
Although arbitration and mediation are both non-confrontational dispute resolution strategies, they are quite different. For example, a mediator works with the couples to help them come to a mutually beneficial agreement. Arbitrators act more like judges and simply hear the case and make a decision.
Arbitration can be helpful for many couples who wish to avoid court. In fact, arbitration is convenient, informal and less expensive; and provides a decision that cannot be appealed. Arbitration is also often used if a couple has waited an extended period of time for a court to hear their case, or if they have been involved in extensive litigation and want an expedited decision.
On the other hand, arbitration is only available if both couples agree to the process. It can also be more expensive than an uncontested divorce or mediation.
When do you have to go to court?
Although many couples have decided to avoid a court battle, there are times when trying to negotiate with your spouse is not an option. In fact, many couples have found that despite the expense, time commitment and work involved in taking a case to court, it might be the only option.
So, what do you do if you have to go to court? You will need to talk to a divorce lawyer. A divorce lawyer can help you file the proper documents with the court, conduct discovery, attend all pretrial hearings, hire experts, resolve all pretrial matters, prepare testimony for court, review all settlement options and attend the trial with you.
Bottom line: Divorce does not have to be expensive or involve a long, protracted court battle. Couples may decide to file an uncontested divorce or use other conflict resolution strategies such as mediation or arbitration to expedite the divorce process.
Have a question? Ask us here.
Written by Justipedia Staff
Whether you're facing a legal issue or just seeking information, Justipedia aims to be your most trusted resource for legal information on the Web. With the help of legal professionals across the country, we put the law in plain language to help answer your top legal questions.
Justipedia was founded by Internet veterans Cory Janssen and Mitchell Allen. Janssen founded Investopedia.com and grew it one of the largest investing sites on the Web. Allen is an author, speaker and the founder of LeadRival, the leading provider of pay-per-action advertising in consumer legal services.Full Bio