Three Alternatives to Divorce Court
by Tom Daley
Most people resolve their divorce cases without going to court. They choose to work through these alternatives so that they have more control over the outcome of their case.
Why Use an Alternative to Divorce Court?
You will be more satisfied with the outcome of your case if you try these alternatives. In one study, 98% of the parties reported that informal settlement was a fair process while only 62% believed that trial was a fair process. In that same study, 85% of the parties were satisfied with the outcome of an informal settlement and only 50% were satisfied with the outcome of a trial.
Why would that be? The main reason for belief in fairness and satisfaction with outcomes is “Control.” When you are out of court, you are in control. You and your spouse can agree to almost anything. When you are in court, you have no control and only some influence over the outcome.
Here’s an example. The Family Code tells parents to do whatever they need to do to protect their child’s best interest. Trial outcomes are not that flexible. That same Family Code tells judges what they must presume to be in a child’s best interest.
Before You Start
You must gather information through the discovery process before you start. Your attorney will tailor the discovery process to meet the needs of your case.
The Three Alternatives to Divorce Court
1. Informal Settlement
After you’ve gathered all the information you need, prepare a settlement proposal. A settlement proposal must be clear and specific. Any term that is open to interpretation will become a source of conflict. Your proposal should express your preferred outcome, tempered by reality.
Some spouses are hesitant to ask for what they want. They tell their attorney, “It will make him/her mad.” Remember, your marriage is ending–everyone’s already “mad” to some degree. So ask. Others “shoot the moon” with offers that resemble dream boards. Those always end with disappointment. Your attorney will help you find a proper point between those two extremes.
After you and your attorney create a settlement offer that you agree with, your attorney will send it to your spouse’s attorney. You might receive a message directly from your spouse about the proposal. The message may contain questions or threats. Share each of those messages with your attorney before responding.
Eventually, your spouse’s attorney will send a response. The response won’t be a complete agreement with your proposal but it will agree to some things. That’s OK because now you’ve started to narrow the list of conflicts.
After you receive a response, you and your attorney will create another proposal to address the remaining issues. You can cycle through this process for as long as you’re making progress toward a settlement. Be patient. Many people settle their cases during this step, but it can take time. Remember, almost everyone finds this alternative to be the fairest and the most likely to produce a satisfactory outcome.
Not every case can settle at this phase. If your case does not settle, the next step is to see if a seasoned mediator can help you.
Mediation is the next step when a case is not able to settle through the informal settlement process. There are many advantages to mediation over trial including that people’s feelings and interests are relevant during mediation.
The mediation process is designed to protect your safety. You and your attorney will sit in one room and your spouse and your spouse’s attorney will sit in another room. The mediator will carry settlement offers and ideas between rooms.
Preparing for mediation builds on your work from the informal settlement process. You may need to refresh some financial documents to get up-to-date balances and do a quick makeover of your last settlement offer. This updated settlement offer becomes your opening offer at mediation.
Mediation days can be long. If you have children or pets, arrange for their care in case your mediation runs late. You will negotiate better if you don’t have to worry about responsibilities waiting for you when you leave.
As an alternative to divorce court, mediation will resemble some aspects of the informal settlement process. You and your spouse will exchange offers through the mediator. Each offer should move you closer to settlement. The mediator can help explain some of the details of your spouse’s proposals. Understanding your spouse’s motivation may help you address the issue in a different way.
The details of offers and counteroffers in mediation can become blurry unless you have a good attorney to help you keep track of them. For most people, the long day and the occasional haze of shifting offers are worth it. Usually, mediation ends with everyone signing a Mediated Settlement Agreement or “MSA.” An MSA cannot be undone after everyone signs it.
If you are not able to settle every aspect of your case at mediation, arbitration presents another alternative to divorce court.
In most cases that are not settled after mediation, the parties prepare for trial. A trial may not be the best next step in your case for many reasons, for example:
- Your trial date might be months away;
- You may not want the judge who is assigned to your case to make the final decisions; or
- The remaining issues are of the kind that can be decided quickly by someone who has the authority to do so.
In the study referred to above, 72% of the parties felt that arbitration was a fair process while only 62% felt that trial was. Moreover, 54% were satisfied by the arbitrator’s award versus 50% being satisfied with the trial court’s judgment. For these reasons, arbitration may be an alternative to divorce court for you to consider.
The arbitrator is usually a retired judge with deep experience in divorce cases. You and your spouse will select an arbitrator by agreement, with the help of your attorneys. After you select an arbitrator, each side presents facts and legal arguments to the arbitrator. Arbitration is different from a trial because you get to pick the decision-maker and the process is less formal. It is like a trial in that you give to another person your power to make decisions about your life.
At the end of the arbitration, the arbitrator makes an arbitration award resolving the remaining issues in your divorce.
There are several alternatives to divorce court. You may have noticed that with each phase, you move from having greater control over your case to having lesser control. During the informal settlement process, you and your spouse have nearly unlimited control. By the time you get to arbitration or trial, you have given control of your case to others. You maintain control over the outcome of your case by diligently working through these alternatives.