The number of couples filing for divorce is increasing every year. When one hears divorce, all that one can think is fighting and hatred. However there are many divorces that have worked out well. How is it possible that some divorce proceedings are messy while others are smooth?
There are many factors that can affect a divorce – the nature of the spouses and others involved, what is at stake, the role of attorneys, etc. Generally, the divorce will be smoother if the issues are sorted out of court. But how can you avoid the courts?
You Can Avoid the Court and the Attorneys
The best way to avoid the courts and the attorneys is to make the decisions by yourself. Legally, you and your spouse can decide on the various issues of the divorce – child custody, child support, and alimony and property division either by yourselves or with the assistance of a neutral mediator. It is generally more beneficial in the long run. When you and your spouse decide on the issues, it gives you a lot of freedom. The courts will decide the issues strictly according to the rules provided in the state divorce law. Court proceedings can be costly and time consuming. Attorneys do not come cheap. Also court proceedings can be tough for the children.
Once you and your spouse reach an agreement on the terms of your divorce, you can apply to the court for a divorce decree. In some states, you need not even appear in court. All you need to do is file some forms and file them after they are signed by you and your spouse indicating that the divorce is uncontested.
Attorneys Often Increase the Tension
Emotions can run high in a divorce. It’s misconceptions that by hiring a divorce attorney you can better deal with these emotions. Some attorneys instead of helping you will seek to increase the emotional tension.
If you intend to hire a divorce attorney, you should take time and ensure that you choose the right attorney. For example, if you should ensure that they attorney shares your goal of ensuring that the divorce is quick and that you don’t have to spend too much time in court. Before you hire a divorce attorney, make sure that you ask the attorney questions and clear all your doubts. Ask the attorney what his or her view is on out of court settlements and whether he or she would recommend it in your case. Attorneys have a duty to zealously protect their client’s interest. Ensure that your attorney knows your interests before you start the process.
Some attorneys take it too far, often fighting over things that are trivial. Generally if your spouse has such an attorney, you will have to hire a similar one too. But be prepared for a long drawn court battle that can be emotionally draining and also costly.
If there are children involved, then fighting can make the situation worse for the children. Divorce proceedings always affect the children. Children generally find it difficult to accept that their parents will be staying apart and will no longer be seeing each other. However the divorce should not end your relationship with your children. You can build a strong relationship with your children once your divorce is complete.
Both Spouses Using the Same Attorney
Rule of the Thumb: Unless the divorce is by mutual consent and uncontested, the spouses should use different attorneys. This helps prevent conflict of interest for the attorneys. Spouses can consider using the same attorney in the following cases:
• All major issues of the divorce have been resolved
• The minor issues will be resolved
• The attorney has informed them that he/she will not be in a position to represent them fully during the divorce
• Both spouses have agreed in writing to use the same attorney
• The attorney’s role is limited to preparing and filing the necessary forms and papers
In some cases, joint representation works well in the beginning in some cases but as the case progresses, there may be disagreements between the spouses and as such the attorney may be compelled to stop representing one spouse. If there is conflict of interest then the attorney must stop representing both spouses.
Collaborative law is a new trend in divorce litigation. In fact there is no litigation in collaborative law. The spouses and their respective attorneys meet and attempt to settle all issues out of court. If no settlement can be reached and litigation is needed, then the attorneys must withdraw from the case and the spouses must appoint new attorneys to represent them in the litigation.
When You Should Hire a Divorce Attorney?
In some cases, you should hire a divorce attorney. If one of the issues is abuse – child, spousal or substance, then you are better off hiring an attorney. If your spouse is making false allegations against you or concealing the facts, you should hire an attorney as it will help in protecting your interests.
If your spouse is being represented by an attorney, you should hire an attorney, especially if the issues of child custody & support, alimony and property division are yet to be resolved.
Attorneys do not come free. You will have to pay their fee. If you are unable to afford the services of an attorney, contact the local bar association or legal aid society who can provide you with free legal representation if you meet certain requirements. Even if you do not meet the requirements, you can still speak to an attorney. Most bar associations have a list of attorneys willing to work on pro bono basis.
Not all divorces are peaceful. Violence is not unheard of in divorce cases. If you believe that you or your children may be harmed by your spouse or your spouse may forcibly take away your property, you should apply for a restraining order. Do not take the children away without a restraining order. You can be accused of kidnapping.
You can withdraw money from your joint account if you need it to get to safety. You should not take more than what is needed and the amount should be less than 50% of the amount in the account.
Mediation or structured negotiation as it is sometime called is an informal and private alternative to settling the issues of a divorce through litigation. In mediation an impartial and neutral third party known as the mediator helps the spouses reach an agreement on the various issues of the divorce. Divorce mediation as been instituted in many states in an effort to reduce the conflict that often erupts and escalates when divorcing couples disagree about child support, custody, or visitation arrangements. Participation is recommended in some states, required in others, and the content and the quality of divorce mediation programs are as diverse as the families they are designed to assist. The primary goal of most mediation programs, however, is to provide the opportunity for couples to reach decisions about child custody and visitation in an environment less acrimonious and adversarial than a court setting. Decisions about disputed assets and financial support typically are resolved through court litigation.