Negotiating the terms of a divorce is difficult enough when you are on fairly good terms with your spouse, not to mention how much harder they become when you can barely stand being in the same room as one another.
However, most estimates put the number of divorces that settle without trial around 95 percent, which may seem surprising considering the common representation of husbands and wives fighting it out in the courtroom.
The reasons behind the vast majority of people skipping out on all the spectacle become fairly obvious once you consider the advantages of reaching your own agreement without going through the strenuous litigation process.
Avoiding the courtroom
First of all, many may not realize that you do not need a judge to make the decisions how issues in your divorce are resolved.
Whether through the utilization of dispute resolution methods such as mediation or simply negotiating on your own, it is entirely possible to determine every aspect of your decree without a judge handing down a verdict.
Asset division, parenting arrangements, child support and alimony — it can all be negotiated outside the courtroom. If you and your spouse are able to negotiate all (or even most) of the terms in your divorce, you will be in for a much smoother process than if either of you are dead-set on having your day in court from the beginning.
The dissolution process becomes very simple once you and your spouse have agreed on the divorce conditions: Simply write these stipulations into a contract, have attorneys on both sides revise the settlement until they agree it is reasonable and submit the settlement agreement to the judge for final validation.
A brief, informal hearing will be held to review the agreement, and so long as everything seems to have been negotiated in good faith and the settlement doesn’t unfairly favor one spouse over the other, you will more than likely have it approved in a matter of minutes.
The settlement will then be formalized into a decree, which will specify each party’s responsibilities moving forward. Divorce over.
Depending on how quickly you and your spouse are able to come to an agreement on the disputed issues, the hardest part of a divorce can be finished before you meet your state’s minimum waiting period.
The litigation route
Litigating your divorce makes for a much longer, expensive and intense process, though it may be necessary if you and your spouse are unable to agree on various aspects of the divorce.
You will likely begin trying to work out your own terms — and you may even succeed in agreeing upon some — but commonly contentious issues that deal with property, custody, alimony, the family pet, etc., may be more difficult to sort out depending on your situation.
When it appears that no agreement is likely, your attorney will begin preparing for your case to head to trial. This means they will start the discovery process, which entails gathering evidence on whatever issues are unresolved, reviewing the opposing party’s case and generally trying to build a compelling argument for why your perspective is right.
This is a very time-consuming process, which becomes quite pricey when your attorney is billing upwards of $200 per hour.
When your hearing date arrives, the judge will listen to testimony from both sides over the disputed issues and make a determination on what he or she feels is a fair settlement within the bounds of state law. This judgment will be binding, and you will more than likely be stuck with that decision.
The benefits of settling out of court
The money saved by avoiding litigation is directly linked to the decreased time it takes to finalize the divorce, as your attorney will not have to do nearly as much work.
It takes a lot of time to prepare for a hearing, so you can count on your attorney fees skyrocketing if you go to court.
The process of discovery can be long and expensive, and many aspects may be necessary to build a strong case. These include gathering documents, hiring expert witnesses to testify, waiting for the opposing party to respond to requests, conducting depositions, waiting out continuances and more — all of which have associated costs that will add up very quickly.
When you agree to your own terms, you avoid paying a lawyer to prepare for hearings and the need to keep a retainer topped off for the months it could take to finally get in front of a judge.
Since it can generally be assumed that everyone going through divorce would like to finalize everything as quickly and inexpensively as possible, the most obvious reason to work towards your own settlement is the cost of taking a divorce to court will exponentially increase the overall time and cost.
Additionally, when you are in control of the outcome, both parties are far more likely to be satisfied with the result. There is little you can do if you disagree with the ruling determined by the judge aside from file an appeal, which is extremely expensive and difficult to win.
Circumstances may change
It is important to note that your divorce can switch between negotiating out of court and needing litigation at any time depending on circumstances.
If it appears negotiations aren’t making any headway and you are just spinning your wheels, it may be time to get the court involved. Then again, if you are heading to your hearing but are able to compromise on the courthouse steps, that works too.
In any case, including the most contentious of divorces, the drastically increased time and costs associated with litigation should serve as a major motivator for reaching an agreement without having to put on your Sunday best and testify before a judge.
And if money and time aren’t important, having a say in your future without someone else mandating how your life will work should carry some weight toward encouraging good-faith negotiations on both sides of the divorce.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”