Anyone who has witnessed the breakup of a marriage, regardless of the duration, has seen the extreme stress and the emotional and financial tolls that a contested divorce in the Domestic Court can inflict. A contested divorce is a long and expensive process, that will leave everybody feel like they lost. Magistrates often say:
“If everyone is unhappy, I have done my job right.”
As an Ohio contested divorce lawyer who has walked many clients through the harrowing battleground that is contested divorce, I will share five alternatives to contested divorce that you absolutely need to consider before filing a complaint with the courts. These alternatives are not only easier on your wallet, but they also offer a smoother emotional journey as well. Keep an open mind, many of these resolutions will require you take a seat at a table with your soon to be ex-spouse, and to work towards a more peaceful end, where you don’t have a total stranger hearing fragmented evidence about your life and making a lasting decision that may not be realistic for you and your family.
1. Legal Separation.
A legal separation is NOT required to live separate and apart from your spouse, you can do that at any time. However, a legal separation creates an enforceable court order setting forth the rights and obligations for each spouse, as you continue to live separately, but remain married. Think of it as rules of engagement, it provides structure and guidelines that can be relied upon and enforced if needed.
If you and your soon to be ex-spouse cannot agree and there is no separation agreement, then the court, after hearing testimony and taking evidence, will determine for you and hand down orders for child custody and visitation and, as appropriate, order spousal support, child support, and division of the marital property and debts.
When people file for legal separation instead of divorce, it is typically because they do not want to divorce for personal or religious reasons, or because they want their spouse to continue to provide for them financially, keep them on their health insurance and other important considerations
2. Divorce Mediation.
Mediation can either take place before or after the divorce is filed. In a pre-divorce mediation, the parties can hire a neutral mediator to help them reconcile their differences, but provides no legal advice to either party. The emphasis is on finding a neutral bond throughout the differences, and a civil relationship between both spouses. One of our clients shared her reason for starting with Mediation:
“We share tremendous love for our kids. Through that love, we need to respect each other and make it work.”
If you have already filed for divorce, the Domestic Courts can order you to their own Mediation Services Program (services available in counties outside of Franklin County may differ) that will allow you and your spouse to try and work out the issues asserted in the Complaint and as a bonus is also paid for by the County.
The mediator is a neutral and is not allowed to advocate for one side or another or to make any final binding decisions (See Arbitration below) for the parties. Think of a mediator as a guide who will do their best to help you both reach a fair and reasonable solution that you created together and can agree to abide by.
Even if you can’t agree on everything in Mediation, it can be a good tool to find the issues that will eventually need Court involvement. I always say if you can agree on 9 out of 10 issues, you are saving yourself the time and money of fighting each and every one of those out in Courtroom.
3. Binding Arbitration.
Arbitration is often used when couples reach an impasse in mediation and want to have their issue resolved without going back to Court. One of the most important reasons that you would use an arbitrator is that you get to have your issues solved in a private setting before an Arbitrator which is scheduled at a time and place convenient to all parties, unlike a court trial, which is scheduled subject to a trial judge’s availability.
In Divorce Arbitration, the Arbitrator is selected and paid for by the parties and is then presented with the specific issues preventing resolution. After a hearing, the Arbitrator renders a decision, on the specific disputed issues. Another difference between binding arbitration and a court decision is that the Arbitrators decision cannot be appealed. It is important to note, though, that issues of child custody and visitation cannot be negotiated through binding arbitration.
4. Dissolution with a Private Judge.
In order to obtain a dissolution of marriage, the parties must agree on both the termination of the marriage and ALL of the terms and conditions of the parenting plan and separation agreement, down to the last candlestick.
A separation agreement must provide for a division of all property; spousal support; and parenting plan will provide for all matters related to minor children of the marriage, including custody, visitation, health insurance, tax dependency exemption and child support. Once both documents are drafted, negotiated and revised, they are signed by each spouse and the result is a binding and valid contract.
In the world of family law, I often refer to a dissolution as the legal equivalent of a four leaf clover, fairly rare. I have found that it is very difficult for some clients to agree and compromise with someone when they are in the process of breaking up with them. Dissolutions are often effective if the parties have no children, or no assets to speak of, or they have been separated for long enough that the emotional fires have burned down. If you think a dissolution is right for you, the best thing to do is have an open and frank discussion with your spouse to see if they are on the same page and willing to agree. It is a difficult conversation, but it is better to find out sooner rather than later where the major issues of contention lie, especially when there are attorney’s fees involved.
In a dissolution, you can use one attorney to draft all of the legal documents and affidavits for both parties to sign; which is a time and money saving option. But let me be clear, if your spouse comes to you with a Separation Agreement or Parenting Plan that they or another attorney drew up on their behalf, it is undeniably a good idea to have your own separate counsel review the documents. These are legal documents with real requirements and ramifications, and it is imperative that you understand each and every provision before you sign on the dotted line. This is money well spent, and many good family law attorneys will offer flat fees for document review. If your spouse complains about the time it will take for you to have the document reviewed, this is a sure sign that you need to have it done.
After the separation agreement and other dissolution documents are agreed to, signed and filed with the Courts, a hearing will be held at least 30 but not more than 90 days later.
I typically use the services of a Private Judge in a dissolution case because it is more efficient, cost effective and private. A private Judge will hear your testimony in an attorney’s conference room instead of the open court of law, and they will make themselves available for your schedule. Even better, they charge a flat fee, so instead of paying your attorney to sit next to you and make small talk while you wait all morning for your name to be called off of a crowded court docket, you have an appointment and an efficient and final hearing on your case.
Collaborative Divorce is an idealistic approach to the termination of a marriage and is often used in cases where both parties are interested in active participation in the process. Both parties will hire attorneys who will advocate for them, but the attorneys sign agreements that state they will not file a contested divorce complaint and that they will withdraw from the case if it cannot be resolved out of court. This gives the attorneys a financial incentive to keep the negotiations going and to help their clients resolve their problems.
Almost all of the negotiations are done in meetings with both attorneys and both parties present. This is an all cards on the table approach with the goal to settle everything fairly and openly. When the parties are cooperative, collaborative divorce is an option that saves everyone time, money and the stress of a confrontational and adversarial divorce.
Remember, You Have Options, and You Deserve An Attorney Who Understands.
All of these options are about maintaining your privacy and keeping control of your life. The court system, while a necessary and final option for access to justice is often overcrowded and slow. The Magistrates and Judges who work on each case do not know you or your family and the realities of your situation and will often make a decision that is technically fair but often not realistic, which only leads to more disruption and disagreement and eventually returning to court with post decree issues.
I find that most people have an easier time following the rules of an agreement that they had a hand in creating which leaves less probability of conflict down the road. It is far better to work with your spouse and an attorney who can be hands on and work with you to tailor a realistic and specific agreement that will work for you and your family.
If you are considering contested divorce, dissolution or any of the other options mentioned above, please do not hesitate to call 614-678-8848 to schedule a free half hour consultations with a Columbus divorce attorney to get your specific questions answered.
(Disclaimer: I am absolutely NOT advocating that anyone who is in an unsafe or abusive marriage not take any available avenue to seek assistance and escape their abuser, if you are in immediate trouble, see my post about Civil Protection Orders as a good first step to keep you safe.)