“Nothing comes together faster than it falls apart – except a marriage.” This old adage describes the contrast between the limited pre-marriage requirements and the extensive process required to end a marriage. Marriage is one of the few contracts that actually requires court action to end. Not every divorce has to be tried by a judge though, the divorce just has to be approved by the court and the court has to issue an order dissolving the marriage. The following is an overview of how divorces can be resolved without a judge and what types of divorces are likely to be resolved in this manner.
Spouses can agree to a settlement at any time prior to a court order dissolving the marriage. The key to reaching a settlement is that the spouses must agree on the basic terms regarding how the property is to be divided, custody of the children, amount, if any, of spousal support, and the amount, if any, of child support. If the spouses can reach an agreement on all of these terms, the proposed settlement will be given to the court for approval. The court’s main concern when considering proposed settlement agreements is with child custody and support. The court order should not be unfair to one party – it should be reasonable in its terms. If the court is satisfied with the proposed settlement agreement, the settlement will be approved, and the matter will be resolved with a decree of divorce.
As mentioned above, a settlement agreement may happen at any point in the divorce. For example, a settlement may come immediately after the decision to divorce is made if the spouses completely agree to all terms from the onset. However, this is fairly uncommon. Generally, settlements come after filing for divorce and some degree of investigation (known as discovery) by both spouses. The discovery process allows each side to gain information that highlights what assets each side has, what each spouse wants from the divorce, and what each spouse is willing to compromise to reach the desired outcome. Once these facts have been discovered, it is easier to reach a settlement. A settlement agreement can also be reached at later points in the proceeding as well, even if the case has already been submitted to the judge at trial. But don’t forget, no matter when a settlement is reached, the court will still have to approve it.
Mediation, known as alternative dispute resolution in legal jargon, is another form of resolution outside of the court. There are two forms of mediation: facilitative (passive) mediation and evaluative (active) mediation. The purpose of mediation is to reach a settlement agreement, guided by a third-party, the mediator. In facilitative mediation, that mediator has the spouses “talk it out,” in an attempt to open channels of communication to facilitate a settlement. On the other hand, evaluative mediation is more structured. In evaluative mediation, the spouses are generally in opposite rooms, and the mediator goes from room to room to hear the positions and evidence of each side. The mediator then offers independent advice regarding the strengths, weaknesses, and likelihood of success for each spouse. Both sides will generally make offers and counteroffers in an attempt to reach an agreement. If no agreement is reached, regardless of the type of mediation utilized, the case will proceed to trial. However, if an agreement is reached, the agreement will be presented to the court for approval.
Settlement and resolution by mediation are most likely to be successful in uncontested divorces. An uncontested divorce has two elements: (1) both parties are amicable towards one another and (2) both parties agree to all necessary terms of the divorce. It is common for spouses to begin the divorce process honestly believing they meet both criteria but discovering that they do not actually agree to all necessary terms. For example, a couple without children may decide to divide all property 50/50. However, an issue arises when one spouse thinks 50/50 means both property and debt, while the other spouse things 50/50 just means property. This disagreement could lead to making the divorce contested. When children are involved, the likelihood of a contested divorce is more likely. Typically, the parent will want what is best for the children, which tends to be different for each parent and skewed towards more time with that parent. This is not the parent being selfish or unrealistic, but rather that is just the nature of being a parent.
Besides differing on the terms of the divorce, amicability between the spouses can also deteriorate. This deterioration typically follows disagreements on terms of the divorce. As differences arise, the spouses may attribute these difficulties to the other spouse, which can lead to arguments on issues that are not really at issue. During this time, an experienced attorney can help facilitate and keep the option of settlement open, despite the bumps in the road.
Today, the majority of divorces are no longer decided by a judge at trial, but rather settled. Settling a divorce outside of the courtroom can remove the unknown of the judge deciding the terms of the divorce, potentially leading to results that neither side is completely happy with. Having an experienced family law attorney is important to achieve a fair settlement, even if the divorce appears to be uncontested at the onset. An experienced attorney will know how to use alternative dispute resolution strategies to find satisfactory solutions for divorces.
If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas, feel free to contact the experienced attorneys at Roth Davies.