In North Carolina, before a couple can obtain a divorce, they need to be physically separated for 366 days. Why does North Carolina require couples to wait an entire year? This waiting period is designed to provide each individual time to resolve all other marital claims that exist between them. The most common marital claims that parties must resolve are: Equitable Distribution, Alimony, and Child Support and Child Custody.
How are you supposed to go about resolving these issues with your spouse? The good news is – you’ve got options. There are several different ways you can reach a resolution with your soon to be ex-spouse both inside and outside the courtroom. Below we will explore some of those options.
Alternate Dispute Resolution (ADR)
Also known as “ADR”, this process allows parties to resolve claims outside of the courtroom, without a judge. Even if litigation is pending, many counties require parties to participate in some form of ADR prior to having an in-court hearing. ADR methods of divorce are particularly popular for celebrity couples. Not only does it provide more privacy, but it allows them to have more control over resolving the division of their assets and custody of their children.
Why did couples such as Jennifer Garner & Ben Affleck, Gwyneth Paltrow & Chris Martin, and MacKenzie & Jeff Bezos turn to ADR to resolve their divorce? In short, ADR methods can be quicker, less expensive, private, and perhaps most importantly, it allows children to remain a priority. Even though you may not be famous, many would understandably prefer to keep the dissolution of a marriage private.
Even if you are not a celebrity, ADR is worth exploring in the event of a divorce – especially if children are involved.
The following are the most common forms of ADR:
Requires both parties (and their attorneys, if involved) to meet with an impartial, trained and neutral mediator. The job of the third-party mediator is to assist everyone in reaching an amicable resolution. Private mediation is most commonly used when each party has an attorney.
May be an option for people who do not want, or cannot, spend the time and money necessary to file a lawsuit. Many people get concerned that during mediation they will need to spend the entire mediation in the same room with their soon to be ex-spouse. However, that is not always the case and you can request, or the mediator will direct, that each party remain in separate rooms with their respective attorneys (if they so choose). Either way, the mediator will facilitate negotiations between the parties in order for them to find some common ground and compromise.
Something all parties going through a divorce should consider as it allows them to reduce animosity and friction by allowing each party to voice their opinions and concerns. Mediation allows compromise and creativity. Mediation also has specific rules, which keeps all offers presented at mediation privileged – which means that you can attempt to resolve disputes without having the fear that they will later be used in court. For example, if you are willing to pay more or receive less in support, and a settlement is not reached on those terms, then those discussions may not be raised at a later date should a judge be your decision maker. Mediation is not binding until all terms are written in a formal document and executed properly.
While we rarely hear stories of celebrities arbitrating their divorce, it is still an option that allows divorce proceedings to remain private, keep costs down, and allows for a quicker timeline than the court systems are often able to provide. This is another voluntary process that offers an alternative to traditional litigation. Arbitration is the only ADR method that involves a third-party decision maker, which is different than mediation.
The parties and their respective attorneys, meet with an experienced family law attorney or retired judge, also known as an arbitrator, to decide all or part of the parties’ disputes. Arbitration is similar to mediation in that it keeps parties out of the courtroom and is a voluntary process. Arbitration is like litigation in that, at the conclusion of the process, the arbitrator will review discovery, hear testimony and examine evidence in order to reach a decision, which will be enforceable. Arbitration is statute driven and, similar to mediation, parties can agree to arbitrate an issue if they cannot agree. By agreeing to arbitrate any future disagreements outside of the court room, it can save time and money and keep matters private.
In this form of ADR, each client is represented by his or her own attorney who is fully committed to resolving all claims and conflict through a series of meetings. Each party and their respective attorneys will sign a Collaborative Agreement where they commit themselves to resolving all marital claims outside of the courtroom and be transparent in the process to do so.
Collaborative Divorce removes the threat of running to the courthouse and allows parties to take an active role in crafting their own resolution. In addition, Collaborative Law is unique in that it provides parties with third party professionals, if needed, who will help parties address areas of mental health, financials, and children. The attorneys, third party professionals and the parties all work together to explore the needs and priorities of both parties. The goal of collaborative law is to reach a resolution by identifying both spouses needs and concerns to ensure an amicable agreement.
Alternatively, some parties may come to an agreement by negotiating between themselves or between their respective attorneys. This is not as simple as it may sound. There are a lot of moving parts when it comes to children, support and property distribution. Negotiating may be a place for parties to start if there is only one issue; or, if the parties have come to a general agreement on their own and they only need their attorneys to finalize the details.
It is important to explore all the ADR options to see what might work best for you and your family. An experienced attorney can help walk you through the pros and cons of each option. In the event issues cannot be resolved out of court, disputes may be resolved with litigation in the courtroom in front of a judge.
Litigation occurs when one party files a lawsuit with the court system for the claims they are seeking from their spouse. These claims include alimony, equitable distribution, child custody or child support. It requires one party to be served with a Complaint. Once filed, both parties are required to abide by court-driven deadlines. Litigation can be costly and has been known to create, facilitate and exacerbate animosity between parties. As noted above, in most counties, and except in certain circumstances, parties will still need to attend some form of ADR prior to having a court date. There is a misconception that having “your day in court” will get you what you want. In litigation, a judge who has never met you will be the one making the final decision and your day in Court will never be exactly what you expected. Whereas, when using a form of ADR, each party is heard and has a substantial impact on how the next chapter in their book will read. While Court may be the only option in some situations, Court should be a last resort.
If you want to find out what option is best for you and your family, consult with an experienced attorney who will help you come up with a cost benefit analysis and options that are specific to you and your case. No one family is the same- neither is any one case.