How to Divorce Without Going to Court

Learn about the techniques that can assist you avoid having to appear in court throughout your divorce.

Divorce Alternatives to the Traditional Process

Let’s start with a disclaimer: while some states enable you to acquire a divorce ruling without ever entering a courtroom, others require you to appear in front of a judge. However, if you can settle your disputes ahead of time, your court appearance will only take a few minutes, rather than the hours or even days that a contested divorce trial will take. You and your spouse can try to resolve your differences on your own, or you can use one of the Alternative Dispute Resolution techniques (ADR).

Solving Problems by Yourself

If you and your husband are on friendly terms, you might list your marital concerns and try to come to an agreement on each one. It’s a good idea to do some preliminary research on the topics you’ll be discussing so you don’t forget anything. Divorce concerns typically include any or all of the following:

• partition of assets and debts
• spousal support or alimony
• child custody, as well as
• support for children

You should have a divorce lawyer formalize your settlement by producing a Property Settlement Agreement once you’ve reached an agreement on all of your divorce-related concerns (also known as a Marital Settlement Agreement). In addition to the terms you’ve agreed to, this will usually include significant legal clauses. Keep in mind, however, that you and your spouse cannot employ the same lawyer; you should both have your own counsel evaluate the contract on your behalf.

Choosing a Mediator for Your Divorce

Mediation is a prominent ADR technique. Mediators are qualified professionals who assist spouses in resolving their conflicts (usually lawyers or child custody experts). The couple will prepare material and documents (such as tax records) ahead of time and meet with the mediator as many times as required to reach an agreement. The idea is to limit the parameters of the settlement to a written agreement.

Mediation is usually less stressful than going through a contested divorce. Sessions are usually held in the mediator’s office and are relatively informal. Although the couple can have attorneys present, it is not needed, which adds to the mediation’s cost-effectiveness. (Having attorneys there can actually be unhelpful at times, especially if the attorney is confrontational.) You will have to pay the mediator, although this is normally split between the parties.

Divorce Through Collaboration

Another type of ADR is collaborative divorce. The purpose is similar to mediation in that it is to establish an agreement, but it is structured differently.

A mediator or other third party is not involved in a collaborative divorce. Rather, each couple has an attorney and participates in “four-way” meetings in order to establish an agreement. Collaborative law attorneys often have specialized training in this area. In order to keep them focused on the settlement, most—if not all—states prohibit them from representing the spouses in future court cases if the negotiations fail.

Collaborative law is based on the concept of working as a “team.” To establish an agreement, all players are required to work together. Any professionals involved in the process (such as accountants, property appraisers, and child psychologists if there is a custody dispute) must be impartial and accepted by both parties.

If you’d rather have an attorney represent you throughout the settlement process, you’re more likely to choose collaborative divorce over mediation. But keep in mind that if you can’t come to an agreement, you’ll have to start the entire divorce procedure over with new lawyers. This could result in a huge increase in costs, as these new lawyers will have to learn the case from the ground up.

Arbitration in Divorce

Divorce arbitration is another weapon in the ADR toolbox, and it’s frequently used by couples who don’t think they’ll be able to settle their disagreement but want someone to make a decision outside of the traditional court system. Unlike mediation and collaborative divorce, arbitration’s purpose is for the arbitrator to decide the case and give a ruling, similar to what a court would do after a trial. (Divorce arbitration may not be available in all states; consult a local attorney to see if it is used in your area.)

The advantages of arbitration versus a court trial are numerous. The arbiter is chosen by you and your spouse. You cannot choose your judge in court. You can also choose to relax the standard rules of proof. For example, rather of having a witness attend in person, you can agree to accept the presentation of a witness’s sworn written statement. You’ll also collaborate to define the dates, times, and length of your arbitration sessions. That’s a luxury you won’t find in court, where disputed divorces can drag on for over a year and you can waste hours each time you go waiting for a judge to show up.

The most significant disadvantage of arbitration is that the judgement is final and binding. You usually can’t appeal unless the arbitrator is acting improperly. With a court trial, it’s nearly a given that you’ll be able to appeal. You’ll also have to pay the arbiter in addition to your lawyers. This can be costly, especially in complex circumstances.

Is it necessary for you to appear in court?

You must submit a divorce petition or complaint with the court to formally end the marriage, even if your case has been settled. The divorce is usually based on no-fault grounds (reasons), such as “irreconcilable disagreements,” by whichever partner files the case. You must submit the relevant papers and forms in states that do not require a court presence. These are frequently seen on the court’s website. A judge will approve the settlement and issue a final divorce judgment if everything is in order.

If your state needs a court appearance, you’ll notify the court clerk that your divorce case has been resolved once you’ve completed the initial divorce filing process. The case will be marked “uncontested,” and you will be given an expedited court date. In most cases, you’ll appear in front of a judge for around fifteen minutes, verifying the grounds for the divorce and answering basic questions about the settlement agreement. Again, the court’s website is likely to provide useful procedural information.

Regardless of which path you choose for your divorce, you should seek the advice of an expert family law attorney who can assist you throughout the process.