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Key points
- Taking a divorce to court is both emotionally and financially costly, and the outcome may not be the best fit for a family.
- About 3 or 4 percent of divorces require a "decision-maker," such as a judge, but most can be resolved outside of court.
- Some tips for staying out of court include negotiating in good faith, focusing on kids, and creating and keeping agreements that suit your needs.
What You Should Know About Divorce Court
Family courts are set up to resolve disputes in families such as domestic violence, divorce, and child custody. The courts are regulated by state and local laws, so the rules that apply vary depending on the jurisdiction.
It can be costly. Filing fees to the court and attorney fees vary from state to state. In a contested divorce, the fees can soar when the parties pay for specialists, custody evaluations, business valuations, witnesses, etc.
The biggest cost, however, is to the family, especially the children. Litigated cases resolve with a “winner” and a “loser,” and the loser often goes back to court, again and again, racking up more costs. A litigated divorce can drag on for years, due to the backlog in the courts, the “discovery,” depositions, appeals, and so on. The longer the divorce goes on, the longer you and your family will suffer.
The outcome may not fit your family. In court, the judge is bound by the divorce laws in your area (which vary state to state), with no leeway for creative problem-solving. The judge doesn’t know you or your family, so the decisions will be strictly “by the book.” The judge won’t consider the emotional factors, won’t punish your spouse, you won’t get “justice” even if you think you deserve it.
It is possible to stay out of court. While some divorce cases (3-4%) need a “decision-maker” — the judge — most can be settled without going to court. Mediation and Collaborative Divorce are two models that can help you resolve your divorce with a “win-win” outcome so that your agreements are durable, and you don’t have to keep going back to court. And, in contrast to a court divorce, these processes are confidential.
How to Stay Out of Court:
- Negotiate in good faith, being willing to understand your spouse’s perspective, even if you see things differently. Search for solutions that meet your needs and those of your spouse, as well as your children’s, if you have kids.
- Put your kids first. You and your spouse both love your kids, so focus on them so that they don’t bear the emotional burden of your divorce.
Working together to divorce will let you all recover and move on.Source: Courtesy of Pixabay/Pexels - Participate with integrity and respect. This means being honest, and not trying to hide information or assets. Your goal is to find equitable solutions, not “fair” solutions. You and your spouse probably have different ideas of fairness, so the word loses its meaning in your negotiations. Be willing to compromise. The goal is a mutually acceptable outcome.
- Keep your agreements. When you stay out of court, you can create agreements that fit your needs, often taking the law into account as just one of the factors in making your decisions. You can think outside the box. Creative problem-solving is one of the best reasons to stay out of court.
- Don’t avoid the necessary tasks required in a divorce. Even if you don’t want the divorce, you need to provide the information required in a timely fashion. If you are angry or depressed and feel you can’t meet deadlines, talk to your mediator or lawyer about the pace of the process. However, if one spouse wants a divorce, there will be a divorce. It only takes one to ensure that the divorce will happen. If the process stagnates due to your avoidance, you risk your spouse taking the divorce to court. A judge will then enforce your compliance.
- Quit the conflict. The cost of a divorce, both financial and emotional, is escalated by conflict. Arguing is pointless and expensive. Arguing in the presence of professionals with the “meter running” is especially costly. Find a way to express and process your emotions through the support of friends or family, a therapist, or a divorce coach. Then you will be able to advocate for yourself in a reasonable way that allows progress, solution-building, and mutual cooperation.
- Avoid escalations—you can’t punish your spouse for their betrayals in a divorce. Don’t “out” your spouse on social media. Betrayals don’t impact the outcome of a divorce. If you or your spouse feel guilty about a betrayal, you might make decisions that you’ll regret. In fact, guilt is often short-lived and often turns to anger, which then sabotages the respectful divorce.
Commit to staying out of court. Either one of you could decide to take your divorce to court when the alternative process (mediation, Collaborative Divorce) stalls or reaches an impasse. So commit to staying in the process through the hard negotiations, and remember that court should be a last resort. It pays to work with the out-of-court settlement processes toward a mutually acceptable outcome, that is less costly emotionally and financially so that you can recover and move on.
© Ann Gold Buscho, Ph.D. 2021
