Do you have to appear in court before you can conclude divorce proceedings? In some states, you could be required to make an appearance, while in other states, you can obtain the divorce decree without making a court appearance.
Either way, you can potentially reduce the duration of the divorce proceedings to hours or minutes if you and your spouse can agree on the post-marital issues. This can be done through direct negotiations or via Alternative Dispute Resolution (ADR) mechanisms such as Mediation.
Alternatives to the Traditional Divorce Process
Resolving Issues on Your Own
It is possible for spouses intending to file for a divorce to agree on the resolution of issues that will come up during the process. However, before entering such negotiations, it is prudent to research or seek expert advice on the topics that need to be itemized and discussed. This helps to cover all grounds.
Issues in an impending divorce often include:
- Alimony or spousal maintenance
- Custody of the child (if any)
- Child support
- Parental responsibilities
- Property and debt division
The above is not meant to be an exhaustive list as each marriage situation is individual. After you and your spouse have discussed all the issues contemplated in your post-marital lives, you should both retain a divorce lawyer that will review the Marital Settlement Agreement. Either of you can instruct your attorney to draft the Marital Settlement Agreement (or Property Settlement Agreement) while the lawyer for the other spouse reviews the agreement.
Mediating Your Divorce
A divorce trial has its impacts on the emotional lives of each participant. Therefore, it is not unusual to have parties decide to opt for an alternative route to resolve their differences most amicably and privately. Mediation is a go-to option for many couples going through a divorce.
A mediator is a professional that assists parties in identifying their differences and working with both parties to reach a mutually beneficial resolution. The result of a successful mediation is a written settlement agreement signed off by both parties.
Lawyers and child custody experts can play the roles of mediators. Information and relevant documents are submitted in advance to the mediator, and meetings are set up to discuss the identified differences before a settlement is drafted and signed.
Both spouses usually share the fees for hiring a mediator. The sessions are more informal and could even take place in the mediator's office.
Mediation can be a faster, more private, less stressful, and more effective process than court trials. Your lawyer is not required in the settlement procedure as lawyers could frustrate the process if he or she prefers litigation.
Collaborative divorce is a different slant or structure from mediation, but the objective is similar – to have parties sign off on an agreement.
There is no mediator involved in a collaborative divorce. Here, the attorney of each spouse participates in "four-way" sessions to resolve the marital issues. This ADR method requires special training for attorneys who are involved.
Spouses can opt for collaborative divorce if they are confident of reaching a settlement and comfortable being represented by their attorneys at all stages of the proceedings. However, most states restrict the attorneys from representing the spouses in future court proceedings if the settlement proceedings break down. This implies that the spouses will have to hire new attorneys to start again or file a divorce claim. Potentially, the fees will become higher.
Collaborative divorce involves a "team" spirit as experts and participants must have their focus on settling. Where child custody is an issue, the experts involved must be neutral, and their appointment must be mutually consented to by the spouses.
Spouses who have contentious issues to settle may opt for divorce arbitration. Unlike in mediation, where the third party is a neutral "peacemaker", the arbitrator appointed in this instance is a "decision-maker". His decision is binding, almost like a court order.
The difference between divorce arbitration and divorce proceedings in court is that arbitrations are more private and time-saving. Some states do not permit divorce arbitration - therefore, it will be important to check with a local divorce lawyer to know the stance of the state you intend to initiate the divorce arbitration.
Other benefits of a divorce arbitration include:
- Both spouses can agree on the arbitrator(s) to adjudicate the matter.
- Hearing dates can be decided by parties and the arbitrator(s) – but in a court setting, the judge may overrule your convenience and set appointments unilaterally.
- The rules of evidence are not strictly applied e.g., a witness may not have to appear in person.
- The judge determines the trial duration in a court divorce, but parties have the liberty to work around the duration of a trial in a divorce arbitration.
There are two major disadvantages to divorce arbitrations.
First, it can be quite expensive. You have to pay the arbitrator and other expenses like the use of a place as the arbitration venue.
The other disadvantage is the finality of the arbitral decision, which you cannot appeal except in very limited circumstances (e.g., the impropriety of the arbitrator). You can appeal a court trial, but the appeal of a well-conducted arbitration may not be possible.
Do You Have to Appear in Court?
The state laws on divorce will determine if you must appear in court to conclude the divorce proceedings.
In some states, after you have reached a settlement with your spouse, you are required to file the Marital Settlement Agreement in court. The case is marked "uncontested" by the court's clerk, and you will appear before the judge to answer some questions in an expedited court hearing. A divorce judgment is issued afterward.
In some other states, you may not have to appear in court.
All you are required to do is fill the appropriate documents and forms (which are usually on the court's website) and follow the guidelines for submission. Often, the spouse who files the divorce bases the complaint on no-fault grounds e.g., irreconcilable differences. Once approved, the judge will issue a divorce judgment based on the settlement agreement.
In either instance, you need the court's order to formally dissolve the marriage.
It is also important you understand the court's procedure in your state before you file a divorce. You should reach out to a local experienced family law attorney who can answer your questions and guide you through the process.