In every jurisdiction in the United States, divorce must be recognized by a court by virtue of a “final judgment” of some kind in order to be effective. So when I say “courtless,” I mean exactly that; these are processes that involve less court, order rather than more. There is no such thing as a “no-court” option. The only question is which path a couple should take to obtain that final judgment dissolving their marriage to one another.
Divorce proceedings are often wrought with emotion and angst. Couples who decide to end their marriages have choices as to which divorce process they utilize. Too often, couples are simply unaware of their many alternatives. If divorce is in your future, you should understand the options so that you can employ the process that will work best for you and your family.
Most importantly: while legal action is required, litigation is not. And sometimes the road less taken is the better one. Just ask Robert Frost.
1) Default. This is the easiest divorce possible from most standpoints, but it is rarely possible. It involves no communication between the spouses and no negotiations whatsoever. In this situation, the parties have generally already separated. One person wants the divorce; the other person either does also or doesn’t care, and has often disappeared. The first person files a divorce petition or complaint (depending on the jurisdiction) in the local court and the spouse doesn’t respond. The first person then asks the court to enter a default judgment (recognizing that the spouse “defaulted” by failing to answer the petition), and granting him or her the divorce requested.
2) Do-It-Yourself. We lawyers refer to this option as the Kitchen Table Divorce. You may choose to handle the dissolution of your marriage yourself, without hiring attorneys. If you haven’t been married long, do not have children, and have few assets and liabilities, negotiating an agreement with your spouse and filing it in court on your own is not terribly difficult, will be the least expensive way to dissolve your marriage, and is the option most folks often choose. Many jurisdictions provide the necessary forms on their court website. The forms contain specific instructions that are intended to be user-friendly. If you and your soon-to-be-ex are able to complete the forms, your only expense will be the filing fee. And then, in most jurisdictions, one of you must attend a court hearing to obtain the judge’s execution of the final judgment of dissolution of marriage approving your marital settlement agreement.
Keep in mind, however, that even in the simplest of divorces, it is a good idea to have an attorney review your agreement before you file it. This brings us to Courtless Option #3.
3) Kitchen-Table Plus. Sometimes the parties are able to reach an agreement together without the help of any professionals, but it’s too complicated to use a simple form. Sometimes, they believe that they have reached an agreement, but one or both of them want an attorney’s advice before signing anything. Whatever the reason, after the sit-down at the kitchen table, one of them then retains a lawyer who drafts what his client understands to be their settlement agreement. It is often beneficial to hire an attorney even if you and your spouse have reached an agreement in order to have legal eyes review it to let you know if you have left out any important issues.
However, the parties must understand that only one of them hired the attorney, and that that lawyer represents only that party’s interests. Of course, the other spouse may also retain counsel to review the agreement prepared by the first and to advise him or her of its potential impact on their lives.
If the lawyer advises his client that there are provisions that should be added or changed, then Courtless Option #4 may result.
4) One-Lawyer/One-Spouse Negotiations. Sometimes one spouse hires an attorney before reaching an agreement with the first, but the other does not. Or the lawyer retained by one to review the agreement the couple thought they had reached advises his client that he recommends certain changes. The attorney then negotiates an agreement between the two spouses.
Again, the couple must be mindful that the attorney only represents the interests of the party who retained him/her. Assuming that the lawyer and the spouse who is unrepresented (called “pro se”) ultimately reach a settlement agreement, again, the other spouse may then retain counsel to review the agreement prepared by the first and to advise him or her of its potential effects. This may result in Courtless Option #5.
5) Two-Lawyer/Two-Spouse Negotiations. This alternative is frequently called Cooperative Divorce. Sometimes both spouses retain lawyers to represent them in negotiating the terms of their divorce; sometimes they’ve already completed their kitchen table negotiations but, having both obtained the advice of counsel, have reopened those negotiations. Cooperative divorce is a principles-based dispute resolution process in which both parties are represented by attorneys. It is settlement-based, but leaves open the possibility of litigation if, and only if, it is absolutely necessary.
This process utilizes a framework for settlement which, if there are children of the marriage, promotes cooperative co-parenting later. If not, it simply supports the spouses’ efforts to keep their divorce respectful and friendly, for the sake of their families, their mutual friends, and their own senses of self-worth. Itreassures clients that their attorneys will try to settle the case. Assuming that both of the lawyers who are retained respect each other and can work well together, it minimizes inefficiency and unnecessary costs while fostering civility and respect between the parties.
If the spouses hit a wall in their negotiations in any of the foregoing scenarios, Courtless Option #6 is the next logical alternative.
6) Mediation. Mediation is a dispute resolution process in which an impartial person (the “mediator”) facilitates settlement negotiations between the two spouses. The mediator may be an attorney, a licensed mental health counselor, a certified public accountant, or some other specially-trained professional. The critical elements are that s/he is trained to mediate and neutral; s/he does not represent either spouse. When considering which type of mediator to retain, you should consider the primary issues of your divorce. If you have children or a mentally ill spouse, for example, a counselor may be best because s/he is better trained to understand the developmental stages of children and how to most effectively negotiate with an ill person. If your issues are primarily financial, you may wish to hire a financial professional of some kind.
Mediation can be used in any of the alternative situations discussed above, except for Default Divorce. In mediation, the couple, either together or separately, either with counsel or without, sits with the mediator to work out their agreement. If the relationship has become oppositional, then the mediator will often work with both spouses at the same time, albeit shuttling back and forth between them in their separate rooms.
Mediation is intended to be interest-based, rather than positional. However, if the parties were not able to achieve their marital settlement agreement through any of the first four negotiation processes described above, it is likely because they are not able to back down from their “positions,” and to identify their “interests” without the help of a very talented mediator.
In any event, an attorney will best understand the legal ramifications of your agreement, and, even if you retain a counselor or financial professional to mediate the details of your divorce between just you two, you may still want to engage a lawyer review your settlement agreement before it becomes official.
7) Collaborative Process. Collaborative practice is a negotiation process that also occurs outside of court, but is specifically structured to ensure respectful and efficient meetings between the two spouses. The focus and objective of collaborative practice is to produce solutions that meet each parties’ needs, and those of their children, if any, within a safe and confidential setting.
While most divorce processes address only the legal and financial separation between the parties, many times the spouses have already taken care of the emotional element of the dissolution of their marriage. If not, however, the collaborative process enables a couple to end their marriage legally, financially, and emotionally, without sacrificing those relationships that they value most, as so often happens in court.
CP is based on three primary principles: the spouses’ pledge not to go to court (i.e. to war); their pledge to an open and transparent, but private and confidential exchange of information; and solutions customized by the parties to account for the highest priorities of the adults, their children, and any other interested parties.
In CP, the parties each retain a lawyer, as well as a team of other professionals who are neutral, usually a financial professional, at least one mental health professional, and sometimes a child specialist. All CP team members, including the parties’ lawyers, should be specially-trained in the collaborative paradigm, although a team may agree to the parties’ choice of a professional who has not yet been trained collaboratively, if they believe that they can collaborate with the parties’ nominee and that s/he will contribute to a successful collaboration.
CP consists of a series of meetings, between each spouse and each neutral professional, between each spouse and his or her attorney, sometimes between both spouses and each neutral professional, and almost always of the full team, referring to all of the professionals, neutrals, lawyers, and both spouses. These meetings are intended to be non-confrontational, and to focus on the shared primary goal of finding acceptable resolution between the spouses. Like the neutral team members, collaborative lawyers are trained to work with one another and the clients to manage communications, to ensure that each client is heard, and to explore each issue and possible solution fully. CP does not rely on court-imposed resolutions but instead permits the parties to negotiate in an safe and structured atmosphere of honesty, cooperation, integrity, and professionalism geared toward the future well-being of the restructured family.
The critical element of the collaborative process that distinguishes it from any other is that the collaborative attorneys will withdraw and the spouses must retain separate trial attorneys if any adversarial proceedings ensue. This assures that everyone involved in the process is committed solely to the collaboration and its goals; no one splits his or her attention between collaborating and preparing for possible litigation in the event that the CP is terminated.
While parties may be more comfortable with the idea that they will not lose their attorneys if they cannot reach a settlement, the fact that the parties in Divorce Options #2-5 can easily choose litigation over settlement means that reaching a settlement is less likely than in the collaborative model.
Furthermore, while there are many ethical lawyers out there, many of them simply do not understand that we all have a conflict with our clients; we want to make money and our clients want to save money. The collaborative process eliminates the majority of this conflict by eliminating the lawyer’s ability to “stir the pot,” whether by design or by accident. The lawyer’s sole job in the collaborative model is to help the clients satisfy their interests and settle their divorce. If he fails in that task and the collaboration terminates, then he loses his job. The parties then proceed to Divorce Option #8.
Traditional Courtroom Divorce. This is also known as litigation. In spite of the plethora of courtless divorce choices, the traditional divorce method is litigation, primarily because most couples are unaware of these choices. With the advent of the internet, folks are becoming more educated, but, while the vast majority of litigating parties end up settling, many issues are still tried in the courtroom; settlements only come after ceaseless courtroom battles on which countless dollars have been spent and endless time wasted. Rather than trying to settle matters amicably, attorneys file motions for even the simplest of issues. Parties play discovery games, refusing to provide financial documents so that the other side has to chase them down. The process tends to be expensive and hostile. It can destroy families who are already emotionally taxed and at odds with one another. And it fails to account for the fact that, in family law, once the divorce is finalized, the parties still have to deal with one another if children are involved.
The very few studies that have been conducted that compare the collaborative divorce model with the traditional courtroom divorce demonstrate that it: 1) costs less; 2) takes less time; 3) is private and confidential; 4) causes less stress; 5) preserves relationships; and 6) produces customized results by which the former spouses are more likely to abide going forward.
Couples who are able to negotiate their own dissolution of marriage agreements, rather than asking a judge to decide the details of their separation and their post-divorce lives, are more likely to abide by their settlement agreements. They suffer less post-divorce litigation because they “own” their agreements, decisions they have made for themselves. Further, judges are limited at to what they can rule, and parties agreeing with each other have more leeway to formulate creative contracts that are more likely to fit their specific and sometimes unique needs.
Divorce discussions usually first focus on agreeing how those negotiations should occur. Understanding the different process options is an important first step in resolving your divorce as inexpensively, stresslessly, and quickly as possible.