When Is It Appropriate To Pursue Your Divorce In Court?

February 14, 2013

Couples getting divorced are usually better off working out their settlement agreements on their own rather than allowing a divorce court judge to do so for them. Decisions left to a judge often fail to give both parties what they want. The judge applies existing state laws and past precedents to the cases presented to them. The problem is, doing so tends to produce solutions considered to be unfair. Both sides are forced to accept the terms unless they can draft an alternative agreement that is acceptable to the court.

Despite the inherent problems posed by divorce court, there are circumstances that warrant its use. We’ll present them below. If you and your spouse are planning to get divorced, but are uncertain regarding the path you should take, the following details should prove helpful.

Ways To Negotiate A Settlement Outside Divorce Court

First, it’s important to be familiar with your options if you are interested in getting divorced on your own. There are essentially three ways to do it: working with your spouse, working through a mediator, or pursuing a collaborative divorce.

The first option – i.e. working with your soon-to-be-ex spouse – is the most informal of the three. Here, you and your spouse discuss various matters, such as child custody, spousal support, and division of property. If both of you are on the same page regarding these matters, there should be few disputes. If a disagreement surfaces, it can usually be resolved through compromise.

The second option, hiring a mediator, is appropriate when both parties remain reasonably friendly toward one another, but there are major issues to settle. A mediator cannot mandate the details of a settlement agreement, but can help the divorcing couple reach a settlement that works for both of them.

The third option is a relatively recent one. A collaborative divorce is one in which both parties hire attorneys and approach the settlement negotiations with the understanding that divorce court should be avoided. In the event one or both parties decide to ask the court to intervene, the lawyers are let go and new ones are retained. The divorce process begins anew.

As noted previously, couples will typically get better results from using one of the three options above. Having said that, the following situations usually require the court’s intervention.

When One Party Insists On Dominating The Other

A lot of marriages involve one personality that is far more dominant than the other. In extreme cases, this can manifest as physical, verbal, and emotional abuse. But even in milder situations, the less dominant spouse is likely to feel as if he or she has less authority. It is difficult, and sometimes even impossible, to negotiate a fair settlement when this is the case.

Divorce court is not necessarily the only option left to the couple. It may be possible to hire a mediator who can steer the spouses toward a fair settlement. If efforts to do so prove ineffective, however, litigation may be the only answer.

When Divorce Attorneys Become Aggressive

Sometimes, spouses are reasonably friendly toward one another, but happen to hire overly-aggressive attorneys. This too can make private settlement negotiations difficult. A spouse with an antagonistic lawyer may be influenced by his or her counsel’s advice. That advice may be to get as much as possible from the other party, even if that means going through the legal system.

The other spouse may be able to convince his or her soon-to-be-ex that the aggressive lawyer is proving detrimental to the negotiation process. If not, it may become necessary to pursue the divorce in court.

When One Or Both Parties Are Uncooperative

Getting divorced is an emotional experience for many couples. This is especially true when the reason for seeking a divorce involves one party’s betrayal of the other (e.g. infidelity). When anger and resentment underlie the negotiation process, a single snide comment or passing glare may cause one or both parties to bristle. The settlement negotiations are likely to break down.

If the couple is unable to set aside their differences, and a mediator is unable to bridge the gap between them, litigation may be the only viable option.

Although it is usually advisable to avoid divorce court, there are situations that make doing so impossible. Retain the services of an experienced divorce attorney if you find yourself headed for litigation.

The author is an advocate for legal rights. She is currently writing on the www.EphraimLaw.com/blog website to help inform people of their legal rights.

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