Divorce Without Court: Options for a Less Cumbersome, Stressful Process

Divorce Without Court: Options for a Less Cumbersome, Stressful Process

By Grant Moher, Esq.

Current quarantines and mandated closures resulting from the COVID-19 outbreak will impact many people’s lives and businesses in very serious ways. One aspect I want to focus on, as it is currently affecting many of our clients, is the assumption that divorce must happen through court.

With Virginia courts halting all non-emergency hearings, couples pursuing litigation will experience substantial delays. For those couples, and those contemplating divorce, it is more important than ever to know: divorce doesn’t have to mean court.  In fact, the vast majority of our cases  (even those that start with court filings) resolve by other means.

Below is a guide to help you understand the various options for resolving your case without the expense, difficulty, delay, and uncertainty of court.

1. “Kitchen table” negotiation. So-called “kitchen table” negotiation is where you and your spouse discuss the terms of your divorce on your own and come up with a resolution.  One of you then hires an attorney only to draw up the agreement, and you both sign it.

It is crucial that an experienced attorney be the one to prepare the written agreement.  Some of the most difficult and costly situations I have seen in my nearly 20 years of practice were the result of couples signing agreements they drafted and signed on their own that contained conflicting provisions, vague terms, or were entirely unenforceable. Kitchen table negotiation can work well for low-conflict situations where there is a good deal of trust between the parties and everyone has full information about the situation, but you must work with an attorney who is well-versed on this process.

2. Attorney Negotiation. Attorney negotiation involves both parties hiring an attorney (or one hiring an attorney and the other spouse representing his or herself directly), and those representatives negotiating back and forth to resolve the couple’s situation.  Attorney negotiation can be very effective for situations where a couples’ communication has broken down, or there is a power imbalance between the parties.
3. Mediation. Mediation usually involves a series of meetings between a divorcing couple and a professional mediator who is trained to help them seek effective solutions to their disagreements.  Mediation is often a good alternative for situations that can’t simply be resolved through a “kitchen table” negotiation.

It is advisable that each spouse have their own attorney to advise them throughout the process, but the attorneys don’t necessarily have to attend the mediations. When I represent a client during mediation, I most often support that person by outlining a strategy in advance of or following a session.

In a situation where several mediation sessions are required, it can be useful for each party’s attorneys to attend and assist the couple in resolving remaining issues. I also typically recommend that one party’s attorney, rather than the mediator, draft the written agreement after the parties reach agreement in principle. It has been my experience that mediators sometimes do not draft agreements as “tightly” as the attorneys representing the   individual parties do.

4. Collaborative Divorce. Collaborative divorce is a process by which a couple signs an agreement committing not to go to court, and to resolve issues pertaining to their divorce over a series of meetings with attorneys who have received special Collaborative law training. The process may also involve other professionals such as a neutral financial professional to help with the division of assets and support, if appropriate, or a mental health professional to help with emotional aspects of a case and / or issues involving the parties’ children.

The Collaborative process delves into the difficulties between divorcing parties more deeply than mediation or other processes.  As a result, the agreement reached can often be a better foundation for separation and divorce.  This can be very important for parties divorcing with youn children, as they will need to work through issues involving those children for years to come. You can find more information about the collaborative process here.

Of course, it’s not always possible to resolve a case outside of court.  But your attorney should always discuss the various options to resolve your case outside of court – and he or she should do this in the very first meeting you have.

Curran Moher Weis has several experienced family law attorneys who are trained in Collaborative divorce, and all of our attorneys are skilled in resolving cases outside of court. Schedule a consultation with one of our Virginia divorce attorneys through our website here or by calling us at (571) 328-5020.

Check back here at our blog regularly for other news and tips we provide to support you as you navigate separation, divorce or child custody issues.