How To Avoid Divorce Court

By: ​Gary L. Borger, Esquire

While less than 2% of the divorce cases filed in New Jersey actually going to trial, a lot of money can be wasted on legal fees as a divorce is processed through the court system heading toward trial even if it settles (as most cases do) at some point before trial actually starts. Trials involve live testimony of witnesses before a judge (as there are no juries in divorce trials in New Jersey), with each witness being cross-examined by the other spouse’s attorney, and with documents being presented as evidence to the extent allowed or limited by the rules of evidence.

Trials are costly in terms of legal fees and lost time from work and are fraught with uncertainty of outcome. Preparation for trial is also very costly as attorneys review all the documents in the client file; identify, prepare and number documents for presentation as evidence at trial (to the extent allowed by the rules of evidence); interview and prepare each witness who may testify at trial; and prepare questions to interrogate witnesses, both on direct examination (when presented by that attorney) or on cross-examination (when presented by the other attorney).

There are alternatives to divorce litigation and trial.

Agreement Directly Between the Spouses

First, in the rarest of cases the spouses can sit down together and reach a settlement on their own, then have an attorney for each spouse review that outline of settlement terms, address items that the spouses may not have considered, and ultimately put the settlement into the form of a marital settlement agreement (MSA) to be signed by both spouses. The case then becomes a settled or uncontested case.

Mediation

Second, the spouses can pursue mediation. Mediation involves the spouses sitting with a neutral mediator (usually but not always an attorney) who does not represent either spouse but rather assists both spouses in their effort to reach acceptable terms of settlement, helping them over impasses, keeping the process orderly, and making sure that all necessary items are addressed. If mediation results in a settlement, most mediators then prepare a memorandum of understanding (MOU) that can be used as the basis for an attorney to prepare a formal MSA to be signed by both spouses. The case then becomes a settled or uncontested case.

Collaborative Divorce

Third, the spouses can consult with attorneys trained in the collaborative divorce process. In the collaborative divorce process, both attorneys and spouses sign a collaborative divorce participation agreement that governs and sets forth the rules of the process for that couple to go through settlement negotiations in an orderly fashion. Rather than each attorney taking an adversarial posture, attacking the other spouse, although the attorneys still each represent one or the other spouse, they actually collaborate together with the couple to try to achieve a settlement that meets the most important goals of each spouse. Obviously, as with all negotiations, give and take (compromise) is at the center of the process. In most collaborative divorce cases a divorce coach assists the spouses and the attorneys in addressing the emotional issues that often are a barrier to settlement. In some cases, a financial neutral expert (usually a CPA) assists the parties in developing the list of expenses each will need as they live separate and apart from one another and in valuing any businesses, business interests, or professional practices that a spouse may own or in which he or she may be a partner, shareholder, or member. The collaborative divorce participation agreement includes a provision that, if either spouse wishes to terminate the process and file for divorce before a settlement is achieved, the collaborative divorce process ends and neither attorney, in such case, can represent his or her client in the divorce litigation. (If a settlement is achieved, as often is the case in the collaborative divorce process, the attorneys can be involved in assisting the spouses in processing an uncontested divorce in the court system after a marital settlement agreement (MSA) is drafted by the attorneys and signed by both spouses.)

Mediation and collaborative divorce enable the spouses to fashion the terms of their settlement that will govern them for the rest of their lives after the divorce and to do so in a private and confidential setting (as nothing discussed in the mediation or collaborative divorce process can be revealed to a judge should the case fail to settle and one or the other spouse files for divorce). Additionally, for those marriages which involve children, the direct negotiation involved in mediation and the collaborative divorce process helps the parents learn how to better communicate with one another to the benefit of their children in the future. It must be remembered that parents remain co-parents of their children after the divorce and have to communicate, discuss, and negotiate things for their children and attend important events in the children’s lives together such as graduations, marriages, births of grandchildren, etc.

Negotiated Agreement

Fourth, the most common method of reaching a divorce settlement is for each spouse to retain his or her own attorney (as one attorney cannot ethically represent both spouses in the State of New Jersey) and to have those attorneys negotiate terms of settlement with one another with the authority of their respective client. This process does not allow the spouses to work together to fashion their own settlement but rather relies upon their attorneys as their surrogates to do so for them. It generally is more financially costly and often takes longer than either mediation or the collaborative divorce process. Further, with attorney-to-attorney negotiation, the spouses do not get to communicate directly with one another to reach their own terms of settlement and may find that the tone of the communication between the attorneys is quite different than how one, the other, or both spouses would have liked it to be, causing more emotional distance between the spouses than is necessary.

Divorce Litigation

When a spouse (or his or her attorney) insists on filing for divorce before attempting settlement through one of  the alternative dispute resolution vehicles such as mediation or the collaborative divorce process, the spouses become caught up in divorce litigation in the court system. This ultimately results in a greater expenditure of money for attorneys’ fees and is a much less efficient process as it can involve multiple court appearances which oftentimes result in attorneys sitting around (while charging their clients for being out of the office), waiting for the judge to get to their case for the various conferences that inevitably get scheduled during the life of the case as it proceeds in theory toward trial. Another shortcoming of rushing into divorce litigation is that, rather than the spouses sitting down together with or without their attorneys to try to settle such issues as a parenting plan and support while the divorce is pending, oftentimes “motions” must be filed (written requests supported by factual certifications or affidavits and financial statements) that request an order of the court for parenting time, interim alimony, child support, etc. Motions are costly and involve filing fees and attorneys’ fees and are open to the public to review as our court system is a public system.

Attorneys are an important part of the divorce process, but spouses seeking divorce should spend their money wisely on attorneys and not waste money as a result of being motivated by anger, resentment, and the other negative emotions that are an inevitable part of the divorce process. (This is one of the reasons that counseling is so important for people going through a divorce.) It is always better to have saved money for one’s children’s college educations or one’s retirement rather than spending it wastefully on legal fees. That is not to say that money spent on attorneys is wasted, but rather that money spent on attorneys should be spent wisely.

Before rushing into the divorce process, consider mediation and the collaborative divorce process as wise alternative options to divorce litigation or negotiation through attorneys. Your future could be impacted substantially by the decision you make at the outset as to how you choose to divorce.

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