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How to Get Divorced

Updated on March 5, 2016

Divorce Court and the Alternatives

In our culture, the default is to hire lawyers and go to court when faced with divorce.

One reason might be that it feels safe and familiar. Everyone has seen a movie how it's done.

Divorce time is uncertain time in the best of circumstances. It feels safer to hand the reins to someone else and let them fix it for you than to try something new. Another might be friends and family trying to protect you from yourself and your possibly impaired judgment.

In this piece I've tried to give an overview of the available options and how they stack up against each other.

My conclusion is that litigation should be the last resort, not the default. The main reason for this conclusion is that all other options let you retain some level of control of the outcome. You have to live with it for the rest of your life. Why give that kind of power to a stranger who has no other involvement in it?

dispute resolution
dispute resolution

Negotiation

Negotiation is when the parties are in direct contact with one another. Both are in complete control and are free to walk away at any time.

The biggest problem is that the parties aren't always in control of their own emotions. Tempers can flare and perfectly reasonable solutions both can accept are left on the floor.

When you're under pressure, your vision narrows and obvious, but creative solutions remain hidden. It is easy to get entrenched in rigid positions.

Mediation

Mediation is when a neutral third-party assists the parties with their communication with one another. The mediator does not decide who is wrong and who is right.

Some mediators control the process and create an environment where the parties can concentrate on solving problems. Others also let the parties negotiate how they will negotiate. At the other end of the control scale, some even suggest possible solutions, a much more hands-on approach.

In all cases, the parties remain in control of the outcome. If a solution acceptable to both parties cannot be reached, they are free to walk away at any time and pursue other dispute resolution methods.

Collaboration

In collaboration, the parties are not in direct contact with each other, but hire attorneys to negotiate on their behalf.

What sets collaboration apart from traditional litigation is that both parties have agreed not to go to court and their attorneys have agreed not to represent them in court. Should one party nevertheless decide to go to court after all, both will have to hire new attorneys.

The most important part is that control remains with the parties. No one else gets to decide how they should live their lives.

Collaboration Resources

Divorce Without Court: A Guide to Mediation and Collaborative Divorce
Divorce Without Court: A Guide to Mediation and Collaborative Divorce

A comprehensive guide to divorce with specific focus on staying in control by working it out outside court.

 

Arbitration

In arbitration, a neutral third-party decides what the parties must do. Arbitration is less formal and with fewer procedural rules than litigation. It is similar to hiring a private judge.

There are two kinds of arbitration:

1. Binding arbitration

2. Non-binding arbitration

In binding arbitration, both agree that they will abide by whatever decision the arbitrator makes even if they don't like it. There is no way to get a second chance through appeals. You're completely at the mercy of the arbitrator and your attorney's ability to make your case.

Non-binding arbitration, on the other hand, lets you walk away if you don't like the decision. It may not solve your problem, but sometimes it is useful to test what a reasonable third-party provided with all the arguments would do.

Litigation

In litigation, a judge decides who is right and who is wrong. You have little control of the outcome. Decisions can be appealed, though.

You would think that judges have to follow the law when they make decisions. Indeed, they do, but they often have considerable room for discretion. Child custody cases, in particular, are notoriously unpredictable. If your divorce involves children, that would be one reason to go out of your way to avoid litigation.

What's Important to You? - Cost or Control

mediation
mediation

Each method of dispute resolution has it's own strengths and weaknesses.

Cost

Each year, divorcing couples hand over millions of dollars to various professionals for doing what they should be able to do on their own: Talk to each other. The more professionals, the deeper the conflict, the more it is going to cost.

Control

As soon as you get anyone else involved, especially professionals, control will begin to slip away from you. They begin to run the show. Initially, that may feel like relief, but soon it will feel more like a straight jacket.

Which method are you most likely to choose for your divorce?

Which method are you most likely to choose for your divorce?

See results

Divorce Resources - General

Whether you hire lawyers and other professionals or not, getting educated should be near the top of your priority list.

Nolo's Essential Guide to Divorce
Nolo's Essential Guide to Divorce

Takes the fear of the unknown out of the process. Knowing what to expect alleviates a lot of anxiety.

 

Comments - Chime in

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    • DeborahDian profile image

      Deborah Carr 4 years ago from Orange County, California

      One of our daughters just went through a very difficult divorce. This was an interesting article. Thanks!

    • WriterJanis2 profile image

      WriterJanis2 4 years ago

      Really good info for people going through this.