So how do you go about getting a divorce? Do you have to go to court? If you have a contested divorce or you are seeking a fault divorce in order to gain greater spousal support or child custody, then the answer is probably yes. If not, then going to court isn't always necessary. In fact, currently only about 10 percent of divorces are taken before a judge. Most are settled out of court.
The typical divorce involves one spouse filing a complaint and then both spouses hiring attorneys. Each attorney begins "discovery" to determine how to divide marital property. Eventually, either the two attorneys work out a settlement on behalf of their clients or it goes to court and is decided by a judge. The couple is not actively involved in the negotiation. The final settlement covers distribution of property, child and spousal support and child custody/visitation issues.
Mediation is growing in popularity for divorce because it puts the couple in charge of the negotiation and how property is distributed. With the help of a neutral professional, the couple can discuss and negotiate the issues to reach a result that both parties are comfortable with. If mediation doesn't work, they can move forward with the traditional, litigated case and let a judge decide.
The couple doesn't avoid court completely with mediation, however. The agreement still has to be approved, forms completed and the divorce finalized through a court process. But, they avoid having their dirty laundry aired in public and they don't have to call friends and family to testify at a trial.
Another option growing in popularity and availability is collaborative law. Collaborative law is a new process for dispute resolution that includes an upfront, written agreement stating that the divorce will not go to court. Instead, it is more of a dispute-resolution setting in which the couple remains in control by way of face-to-face negotiation sessions. Those sessions include both spouses and their attorneys. They may also hire professionals such as therapists, appraisers or other consultants.
Essentially, the attorneys are there to answer legal questions, and the couple controls the negotiations. Both spouses have agreed that information will be exchanged (discovery) in a timely manner. Because each spouse understands his or her individual interests and needs better than anyone else, this process allows them to present those needs and find a solution quickly.
Rather than being out to "win" -- creating an adversarial atmosphere -- the attorneys in this case become problem solvers and negotiators because the whole focus and goal of the process is the settlement. If a settlement can't be reached, the attorneys agree to be fired and pass on all of their files and information to subsequent attorneys. This helps control costs because the next attorney doesn't have to repeat the discovery process.