Most divorcing couples, given the option, would rather not put their divorce in the hands of a judge. Divorce is a private concern, while divorce court is an adversarial, public affair. Unfortunately, many people do not know of the various ways to avoid divorce court. This article describes some of the alternatives to divorce court that every couple should know about.
1. DIY Divorce
The Massachusetts Probate and Family Court provides forms for preparing your own separation agreement, and there are various websites that purport to do something similar. In most cases, I do not recommend either option. Every marriage is different, and these forms have no way of exploring the nuances of your particular situation. By relying on checkboxes and generic language, you risk signing an agreement that overlooks a important issue, or that addresses an issue in a way that does not make sense for you. You might end up with long-term obligations that you regret, or you might need to revisit the agreement with your ex-spouse to make additions or revisions. It is far better to get assistance from a divorce professional who can help you carefully explore the different concerns that your separation agreement should address.
The DIY form approach to preparing a separation agreement also assumes that you and your spouse will be able to agree on all the issues. However, divorce often comes with a host of disagreements and communication barriers that prevent a couple from getting to that point by themselves. This is one of the most important reasons to hire a divorce professional: as an outsider, they will be able to work with you and facilitate an agreement in ways that you might have trouble doing yourselves.
Finally, you should be aware that agreements provided by legal forms websites are of questionable quality and might not properly reflect the law in your jurisdiction. One divorce lawyer told me of a client who came to him with a lengthy draft agreement to review, which the client had prepared through a popular legal forms website. Unfortunately, the language in the draft agreement was so poorly suited for Massachusetts that the lawyer was essentially forced to rewrite it. Obviously, you do not want to sign an agreement that does not conform to the laws of the state where you live! Even if you did sign such an agreement, there is a risk that a judge would not approve it.
I will note that there are certain circumstances where a DIY divorce might make sense. If you have no children, neither of you will be paying support to the other, and there is no question whatsoever of how to divide your respective assets and liabilities, then you might consider asking the Family Court in your county for a form agreement. (Oddly, the form is not available on the Massachusetts Probate and Family Court's Forms Page.) Even so, I would still suggest consulting with an attorney to make sure you are not overlooking something important. Divorce is a legal process, and you owe it to yourself to get professional advice before signing anything legally binding.
2. Divorce Mediation: Facilitated Agreement
In divorce mediation, you and your spouse sit down together with the mediator, who is a neutral facilitiator. The mediator does not represent either you or your spouse, and does not provide either of you with independent legal advice. Instead, the mediator helps you and your spouse discuss the issues in your divorce and come to your own agreement. The mediator can also provide you with neutral information about the divorce process and the options available to you, to enhance the dialogue and help you reach informed decisions.
Hiring a mediator does not mean you give up the right to independent legal counsel. Indeed, you can (and should) still hire an attorney to give you independent legal advice and review the separation agreement prepared by the mediator before you sign it. There is also the option of having your attorneys attend mediation sessions (some mediators insist on it; I do not).
Mediation results in agreements with much higher compliance rates and is far less expensive than litigation. Statistically, it makes a lot of sense to try mediation before going down the litigation path.
3. Collaborative Divorce: The Team Approach
If you want to have attorneys attend your mediation sessions, I would encourage you to consider Collaborative Divorce. In Collaborative Divorce, you and your attorneys meet with a neutral "coach facilitator" to work through the terms of your separation agreement. You can think of the coach facilitator as a form of mediator; his or her job is to facilitate dialogue and keep discussions moving in a productive direction. Depending on your circumstances, your "Collaborative team" might also include a financial neutral to help you figure out your post-divorce finances, or a child psychologist to help you make informed decisions about post-divorce parenting.
There are two factors that make Collaborative Divorce particularly appealing. First, all of the members of the Collaborative team are trained in the Collaborative approach – they are all familiar with the Collaborative dispute resolution framework and understand that their job is to help you and your spouse reach an agreement in a non-adversarial manner. Second, the lawyers agree beforehand, in writing, that neither of them will represent you in court if the Collaborative process fails. This agreement between you and the lawyers allows everybody to breathe a bit more freely, knowing that the entire team is fully committed to a non-adversarial process.
Collaborative Divorce can be more expensive than mediation, but it makes sense in more complicated or contested situations where a bit more help is needed. Like mediation, it has high success rates and results in better compliance with agreements, so it makes a lot of sense to try Collaborative Divorce before taking your divorce into court.
4. Lawyer-to-Lawyer Divorce Negotiation
With the right lawyers, lawyer-to-lawyer negotiation can be very effective, particularly if you and your spouse are unable or unwilling to speak with each other about the issues. It is certainly a preferable alternative to litigation in most cases. However, when you negotiate through lawyers, you are no longer speaking for yourself, and you lose the opportunity to explore possible outcomes directly with your spouse. You also lose the ability to mend communication channels between you and your spouse, which is particularly important if you have children and will be coparenting. If you are still able to talk with your spouse, even if dialogue is strained and you disagree on many things, I would encourage you to consider mediation or Collaborative Law before lawyer-to-lawyer negotiation.
5. Have a Prenuptial or Postnuptial Agreement
With a prenuptial or postnuptial agreement, you and your spouse decide how certain matters should be decided in the event of a divorce. Obviously, you do so with the hope that the agreement will never, ever be enforced – but also with the understanding that in the worst case scenario, you would want your divorce to proceed smoothly and with the least amount of conflict possible. A well-prepared prenuptial or postnuptial agreement can accomplish that, typically by defining how certain assets should be handled in the event of a divorce.
A prenuptial or postnuptial agreement generally cannot address all the issues – for example, child-related issues are always open to discussion, and many couples do not even have children when they sign the agreement. However, by disposing of certain issues well in advance, you can avoid a great deal of conflict in the event of a divorce.
Divorce Court Is Only One Option!
I am amazed by how many people who contact me are not aware of the alternatives to divorce court. In fact, divorce court is only one way to get divorced, and is by far the least preferable way for most people. If you are getting divorced, please consider one of the options described in this article before taking your family down the destructive litigation path.