Almost everyone knows a terrible and tragic divorce story. Perhaps their own. A friend. A parent. Divorce is unique in the legal system in that it almost always ends with each spouse (and the children) obtaining a result they are unhappy with.
As Indiana divorce attorneys, we know the protracted divorce and “nasty” trial sometimes is unavoidable. There is too much past baggage, which may range from marital debt to unfaithfulness. The divorce trial becomes the only focal point to address actual and perceived past wrongs, legal, emotional, physical, and the list goes on.
However, Ciyou & Dixon attorneys also observe some divorces wind up tried because that is the expectation from the outset and it becomes reality. In the not-to-distant past, this was accepted way to end a marriage.
Nowadays, in most cases, a divorce trial is a sign of failure, whether it be the parties, any of their professional advisors (who may range from lawyers to therapists), close friends, or product of all of these influences and others. Statistically speaking, most marriages have the parties “divorce” by means other than trial.
In contemplation of divorce and during the process, take care to keep this myopic view from forcing a trial. Trials have an uncanny way of leaving emotional and other litigation scars that even time has a hard time blunting. And if done correctly, are expensive. Recognizing this goes a long way to avoiding trial.
This is the first step. The other key is to understand what the legal alternatives are to trial. There is no one-size-fits approach in the alternatives. Every case and set of litigants are unique, and thus, these should be considered in the overall orientation of the case.
The most common five alternative ways to end a divorce are provided with some useful orientation discussion:
- Settlement Agreement.
- Settlement Conference.
- Collaborative Process.
By far, the best thing that has happened in family law in the last decade is the nearly universal acceptance of mediation as the best way to resolve a divorce case. In fact, given the success of mediation in settling most divorces, instead of trial, courts routinely order the parties attend mediation before setting a trial date or having a trial.
Meditation is a process where a neutral third party goes back and forth between rooms where the parties are located and tries to broker a deal. This sounds simple, and even appears simple with a good mediator. However, it is far from that. A good mediator usually has been specially trained for the job and is a lawyer.
How the process works is each sides sends the mediator a confidential statement in advance identifying the legal and non-legal issues. Sometimes this includes “bottom line” positions. There is no harm in this because the mediator cannot disclose any part of this statement or discussions without a litigant’s permission.
On the day of mediation, the parties meet at the agreed-to place and the mediator picks one side (a husband or wife) to begin with. The mediator then goes back and forth trying to “deal” for the parties. If the case settles, the mediator reduces at least the key points to writing and the parties and counsel sign.
Sometimes mediation goes on for several hours. To make the most of it, get a good night’s sleep the day before, decide what it is you really want before hand, and have baby-sitting arranged if necessary. Take a snack. Go into the process expecting the case will settle–and it probably will.
There are many benefits of a mediated agreement and very little downside. The one unique aspect of mediation over trial is the parties will walk away with certainty as to the future. And unlike a trial, the end result is an agreement that was reached by and under the parties’ control. There is less “what if” associated with trial.
Mediation is a tried and tested tool in the domestic arena. Consider it carefully and embrace it; you will be glad you did. However, consider it in the context of your case with your counsel. It may not be the best or only way to resolve the legal case.
In a small number of cases, arbitration may be engaged. Domestic arbitration is a newer legal tool. This is a private process where an attorney serves as a de facto judge and the parties with their attorneys present their case. This arbitrator then reaches a decision and advises the parties.
This decision may be binding if the parties agree in advance or non-binding. Non-binding arbitration allows the parties to understand how a judge may view the case if it goes to trial. There are many benefits to arbitration, such as privacy and speed. However, the parties have to pay for the arbitrator’s time, unlike a trial court.
Although a newer concept, this may be the right tool to consider with your counsel. This is particularly useful and appropriate for large marital estates. For instance, an arbitrator can be selected with specific background in the issues at hand.
Sometimes a settlement conference may be a better choice than mediation. For instance, if the parties cannot afford mediation or they disagree on only a few issues, a settlement conference might be the right tool. In may respects, this is a mediation without a mediator.
The commonality is the parties and their counsel and other necessary advisors, such as a financial planner, all are available at the same time and place to reach a “deal” or agreement in real time. The parties and their counsel broker the deal. A written agreement still is the end result.
In mediation or a settlement conference, if an agreement is reached, it is basically reduced to a written document akin to a contract and signed by the parties and their attorneys. This is a settlement agreement. In some cases, a mediation or settlement conference is not possible or preferable to reach an agreement.
Instead, as the parties begin winding up their marriage by sending partial or complete proposals back and forth between their counsel. The process (like mediation or a settlement conference) may result in an agreement, the settlement agreement.
Where the parties do not know what they want, and/or undetermined matters, a settlement agreement can effectuate a “dialogue” of sorts between the parties. By these communiqués back and forth, the parties by counsel, the parties heal their emotional and other wounds by telling their side of the story, even though not before a judge.
However, they do not risk the unknowns of trial by the chance of obtaining a worst day scenario. Instead, they have a legal dialogue to determine vet their legal positions. If there is any common ground established, a formal settlement agreement contract is drafted. With this, the parties agree to terms.
Unless the agreement specifies something that is inconsistent with the children or violates public policy, most courts will order the parties divorced on these mutually agreeable terms. Any of these techniques to end a marriage outside a trial may be used independently or in succession with others if they fail.
A newer concept that arbitration is collaborative law. In this process, the parties use a series of business like meetings with agenda of items to work through the issues with their attorneys. This is very useful tool and is gaining steam. The end product is a collaborative agreement. This is effectively a settlement agreement. In the event the process fails, the parties each have to obtain different counsel.
In a small number of cases, these alternatives to trial do not make legal sense or otherwise direct other than a trial. This is why the courts exist as a separate branch of the government under our three (3) part system. Indeed, this is the lynchpin of freedom and our way of life as we know it.
If this is the case, good lawyers and a fair impartial judicial officer makes the most of unraveling a marriage that took time, weeks, months or years to create, where the parties cannot or should not agree. However, because the parties are not in control of the outcome, it increases the likelihood of second guessing it.
This potential should never be dismissed, but should be the last resort it is intended to be. In all of Indiana’s counties, the judges take divorce cases and the apportionment of a marital estate as carefully as any matter. But make no mistake, a divorce does not create a winner and loser, but losers of varying degrees.
When the marriage is at an end, a party should not think of the ultimate divorce in terms of a trial. This may be the case, but it should be a last resort. The hours, days, week, months and years you have worked with counsel is no substitute for a trial, nor can it be. The judiciary exists to use its trial function as a last resort.
At Ciyou & Dixon, P.C., we hope you consider a divorce trial as a last resort measure, not the be all and end all of a marriage by divorce. It is but one tool to maximize the benefit and minimize the detriment where one door (the marriage is closing) and another one (the future) is opening). A great deal is mindset and understanding there are alternatives to a trial.
This is life, law, and divorce in current times. It is not the battle, or at least it should not be, that your parents or their friends went through. Ciyou & Dixon, P.C. advocates practice through the state. Perhaps we may be the right choice as your counsel.