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How Non-Court Options Work
If you and your spouse are on decent speaking terms, you can try to work out how you want to resolve the issues that have to be addressed in a divorce. Even if you don’t agree on everything, you will narrow down the areas of disagreement. Before you sign an agreement, however, it is important for each of you to have an attorney advise you about the legal effects of your choices so that you don’t have surprises later. You should each have separate attorneys advise you and then have one of the attorneys draft an agreement that will meet your legal needs.
In mediation, a trained neutral facilitator (a mediator), will help you and your spouse systematically work through all of the issues that need to be decided in a divorce. The mediator will draft and agreement based on your decisions. You can then take the agreement to an attorney to review before you sign it. This method is effective for many people as long as there is no history of family abuse and both you and your spouse are willing to take part in the process.
If you would like to have the support of your attorney in the mediation process, this can happen as long as your spouse agrees for attorneys to be present. Even if your spouse won’t agree to have attorneys present, the mediator should allow you to take a break to consult with your attorney any time you need it.
The Collaborative Divorce Practice method of resolving a contested divorce is growing in popularity across the nation and around the world. It offers the support of specially trained attorneys who have experience in representing clients in a non-adversarial way. Instead of preparing for the war of litigation, the attorneys work together with their clients in a series of conferences to generate ideas that will meet the needs of all family members. There is also help available from other professionals, such as communication coaches, child specialists who help with parenting plans, and financial professionals. Together, the professionals as a team support the family through the process of making agreements in a private and confidential setting.
Once an agreement is reached on all issues, the attorneys help the couple move forward with an uncontested divorce, if that is what the couple wants to do.
If there are issues in the relationship that cause the parties to need more protection and insulation from each other (such as intimidation or family abuse), lawyer-assisted negotiation may be a good option to avoid court. In this process, you would ask an attorney to draft a separation agreement reflecting what you believe would be a fair way to address the issues that must be resolved in divorce. The agreement would be sent to your spouse (or his or her attorney, if they have hired one). Your spouse would respond with his or her ideas and the negotiation process will continue until the two of you come to a meeting of the minds.
If you and your spouse want your divorce to remain private but you cannot agree on the terms, a private trial, or arbitration, might be an option for you. In arbitration, evidence is presented to an attorney or retired judge who is acting as an arbitrator. You and your spouse agree ahead of time that the arbitrator’s finding is binding just like a court order would be. The arbitrator’s decision is then submitted to the court for entry with the final decree of divorce.