Today, couples seeking a divorce have options to consider outside of traditional legal proceedings. Parties to a divorce are becoming increasingly aware of the expense, time and emotional toil of adversarial litigation, and are looking to options that better suit their financial and emotional needs. The following three options are alternatives to traditional divorce proceedings that mesh alternative dispute resolution with traditional lawyering skills to settle a divorce.
Mediation is the process of settling divorce issues using the assistance of a mediator. A mediator is a trained and impartial third party who issues a non-binding decision as to the marital dissolution. Spouses have the choice of opting for private mediation, or court-ordered mediation.
In private mediation, couples have a chance to discuss and resolve issues such as finances, child support, spousal support, property disputes, and to lay out their solutions in divorce agreements. Court-ordered mediation is mediation that is ordered by a judge, in an effort to resolve custody and visitation disputes before the couple brings their case to court.
Lawyers may be involved in the mediation of a divorce in numerous ways:
Arbitration is the alternative dispute resolution process by which the marital dissolution is submitted to a third party, often an attorney or retired judge, for a binding decision on such divorce issues as property distribution and alimony payments.
Arbitration is usually less formal than a court trial, and arbitrators need not be concerned with such logistics as an overloaded court schedule, thus expediting the process. The less time it takes to resolve a divorce, the less money it will cost the parties.
Most states uphold arbitration agreements regarding property or alimony, but most states will not uphold binding arbitration on child custody and child support. Courts feel that the state is ultimately responsible for child welfare, and generally restricts decisions about child support and custody to a judge.
The issuance of an advisory opinion is another form of alternative dispute resolution. Advisory opinions are non-binding opinions made by experienced family law attorneys regarding how a case would be resolved, if it was litigated in court. Attorneys present the case as they would in a regular divorce court, with the spouses present.
After the attorneys on both sides present their cases, the family law attorney advisor overseeing the matter gives a non-binding opinion on how the case would be settled in court. The advisory opinion usually encourages husband and wife to settle out of court, but the right to take the divorce to trial remains.