Better Sooner Than Later?

Early Divorce Settlement Can Reap Big Advantages

by Michael Heath

There are good reasons why anyone would want to avoid a prolonged divorce. Ending a marriage through long, dragged-out litigation often results in ruinous legal costs. The process of case building to outmaneuver the other side often amplifies existing animosities while triggering new ones. Reducing financial and emotional costs can have long term benefits for the couple and their children.

Not Just Money and Emotions

Often one or both spouses are simply tired of living the day-to-day grind of a failed marriage and are anxious for a fresh start. Sometimes a spouse wants to move forward with a new relationship but is hampered by their legally married status. There could even be a pending business or investment opportunity that a spouse wants to take advantage of but knows it is judicious to have a settled divorce before taking on a new venture. Other life situations provide additional rationales to settle early.

Litigation Takes Time

Once a Divorce Complaint is filed with the court the other spouse has about thirty-five days (depending on the state) to respond. If the defendant (also known as respondent) does not respond or agree to the terms, then the paperwork goes to the judge for approval. In most cases the plaintiff’s (also known as petitioner) terms are not accepted and are contested by the responding spouse. Once contested, both sides begin pretrial preparation known as discovery. This process of gaining evidence can include interrogatories, requests for admission, requests to produce documents, subpoenas, and depositions. Each procedure requires trained professionals and time to complete each task. Depending on the complexity of the divorce, billable hours can escalate as the entire process lengthens into months and sometimes years.

Alternatives to Litigation That Are More Expedient

Early-stage mediation is a good alternative in that it leaves control with the spouses instead of with litigation attorneys and court. There is a discovery process to prepare for mediation, but it involves a complete paradigm shift. Instead of working to build a case against the other side, the two spouses work together to produce information they will both use in mediation sessions. Informal discovery takes much less time and normally causes far less hostility. While litigators have a win-lose mindset, the mediator injects meetings with a solutions-based approach where the couple collaborates towards win-win decisions. When spouses work together in ending a marriage, they retain the power to reach a settlement on their own terms and schedule.

Collaborative divorce is of the same concept as mediation but with specially trained lawyers. Divorce arbitration is similar to court but is usually conducted at a law office conference room, so couples are not beholden to the county court schedule. In cases where the couple chooses a do-it-your-self divorce the only thing holding them back is filling out the paperwork correctly and filing it with the court.

When Litigation Is the Right and Only Choice

There are times when there is no substitute for retaining a good family attorney. Domestic abuse, the threat of absconding with the children, and dissipation of assets are examples where hiring legal counsel is a priority. These issues and others disqualify any alternative divorce process. Some spouses who have a choice may simply prefer to adjudicate through an unbiased court system. This could be even more true in a complex marriage where informal discovery is not trusted to be sufficiently thorough. A full legal team working to ensure that all pertinent information is uncovered may bring needed peace of mind. Even couples using an alternative divorce method are advised to have an attorney review the paperwork before filing. Whatever the spouses agree to, they will have to live with.

Eyes Wide Open

Alternatives to divorce litigation offer opportunities to end a marriage in less time than litigation. However, in many cases retaining family attorneys may be desirable and even necessary. Whatever the direction a couple takes they should remain aware that a protracted divorce with a late settlement typically delivers results that are known in negotiation as lose-lose.