Out-of-Court Divorce

When you think of divorce, you probably picture people in a courtroom, having their future handed down to them by a judge. But for many people, it is possible to go through the divorce process largely outside of the courtroom, even if there are many contested issues in the divorce.

An out-of-court divorce typically involves a process that falls under the umbrella of Alternative Dispute Resolution, or ADR. There are a number of ADR processes that can help you and your spouse have a less-stressful divorce on your terms while staying out of the courthouse.

Types of Out-of-Court Divorce

Facilitative mediation is one form of out-of-court divorce. Facilitative mediation takes place early in the divorce process, perhaps even before the divorce is filed. It is voluntary, which means it continues only as long as you, your spouse, and the mediator feel it should. In facilitative divorce mediation, you and your spouse work with a neutral mediator. The mediator's job is not to make decisions in your divorce, but to listen to you and your spouse and help you identify issues that you need to resolve (such as how to arrange custody and parenting time). The mediator then facilitates discussion so that you and your spouse can reach an agreement that works for you both.

While a successful mediation can take as little as one session, typically you and your spouse will meet with the mediator multiple times so that he or she can get a sense of your needs and goals. The mediator will help you fashion a settlement that meets your needs and commit that agreement to paper.

Does facilitative mediation really work? In a word, yes. Research shows that couples who mediated their divorce tend to be more satisfied with the process and results than those who went through an adversarial divorce. Mediated divorces also are likely to take less time and cost less money. Because parties create their own agreement rather than having an order forced upon them, they are less likely to go back to court later to fight about something in their divorce judgment.

Collaborative Divorce is another option for out-of-court divorce. Whereas mediation centers around you, your spouse, and a neutral mediator, Collaborative Divorce is a process that involves a team: you, your spouse, and your attorneys. Other professionals may be involved as well, including:

  • Financial neutral, who helps you and your spouse evaluate your finances and financial needs;
  • Divorce coaches, who help you and your spouse navigate the emotional ups and downs of the divorce processes so you don't get "stuck;"
  • Child specialist, who can help you understand and meet the needs of your children in the divorce.

Some people worry that having a team of professionals will be costly, but are usually pleasantly surprised. Each professional has a role for which he or she is best suited, so they can work effectively and efficiently, and clients are not paying a lawyer's hourly fee for something another professional can do better, more quickly, and at a lower cost.

All professionals involved in a Collaborative Divorce must have special training in the Collaborative process. Negotiation takes place in four-way meetings between clients and attorneys. Unlike litigation, in which attorneys speak for their clients to keep them from saying something that could harm their position, client input is encouraged in Collaborative Divorce. After all, the parties are the ones who have to live with their agreement.

The process is based on the principles of good faith and full disclosure. You and your spouse commit to speaking honestly, and not to use anything the other person says against them in any future litigation. Because you are empowered to speak freely, you can express your needs and apologize for wrongs without fear of legal reprisal. Participants often say that the lack of adversarial posturing makes the process much less stressful than they expected a divorce to be.

Advantages of Out-of-Court Divorce

Out-of-court divorce can offer many advantages over litigation (in-court divorce), including:

  • Control: In divorce mediation and Collaborative Divorce, you have more control over the pace of the process, as well as the outcome and how issues are resolved.
  • Privacy: Whereas court filings are public record, meaning everyone from your neighbors to your children could gain access to them, documents generated during mediation or the Collaborative Divorce process are kept confidential.
  • Creativity: With mediation or Collaborative Divorce, you have the flexibility to craft creative solutions to problems that will work for your family's needs, and that a judge who doesn't know you might not have ordered.
  • Peace and dignity: Though the approach is slightly different, both mediation and Collaborative Divorce have the goal of you and your spouse communicating and working together to reach resolution. This contrasts with the adversarial, often hostile, nature of court proceedings.
  • Saves money: Both mediation and Collaborative Divorce can save money, since they usually minimize attorney time spent in court, preparing for trial, and in post-judgment motions, which translates into lower attorney fees.

Out-of-court divorce works well for many couples, including some who did not expect to be able to resolve their issues without the help of the courts. It is not for everyone, though, so be sure to explore your divorce options with an experienced Michigan family law attorney.

Experienced Macomb County Mediator and Collaborative Divorce Attorney

Attorney Paul Kowal has over thirty years of experience in Michigan family law, including facilitative divorce mediation and Collaborative Divorce. He is a trained divorce mediator and has been active in the Collaborative Divorce community in Michigan since its early years. At Paul S. Kowal, P.C., we can help you find a divorce process that works for you, your family, and your finances.

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