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How to Get Divorced

When many of us think of divorce, we envision a courtroom with a judge, attorneys, and the warring parties set against each other in a legal battle royale. That may be how it goes in the movies, but the fact is that a very small number of divorce cases end up in a courtroom. Most are settled elsewhere, only involving a judge when it comes time for the presiding justice to sign the divorce decree. If you are considering asking for a divorce, consider also how you think your case may be best settled. It may be less stressful, less costly, and less painful than you think.

Uncontested

An Uncontested Divorce (sometimes called a Kitchen Table Divorce) happens when both parties agree (1) that they no longer wish to be married and (2) on how to divide their assets. This method is by far the cheapest, easiest, and shortest way to a divorce. Often, both parties understand their finances well, agree that the marriage needs to end, and are willing to work together to reach an agreement without the need to get attorneys or other experts involved.

Once the parties agree on a settlement, one party will hire an attorney to draft the divorce decree. The other party should hire their own attorney to review the decree on their own behalf. Once both parties and their attorneys have signed the decree, it’s just a matter of going down to the courthouse and putting it before the judge for signing.

This type of case can be settled in as little as 61 days[1] and is relatively inexpensive to complete. But these cases tend to be rare.

...these cases tend to be rare.

Collaborative

Perhaps both parties agree they no longer want to be married but can’t agree on a settlement. They don’t want to litigate, but they need some outside help to get to an agreement. These cases are good candidates for the Collaborative Law Process. In a Collaborative case, each party hires an attorney, and the parties may also engage a mental health expert and/or a financial expert (like a CDFA). These mental health and financial experts act in a neutral capacity. The parties, their attorneys, and the experts they’ve chosen to hire work as a team to reach an agreement that both parties feel is fair, equitable, and serves their interests. The formal Collaborative Law process can be expensive, but it often leads to better outcomes, less strife, and an agreement both parties are more likely to abide by. Another bonus is that it is private.

Staying out of the courtroom means your private lives need not become part of the public record.

Because the official Collaborative Law process can be costly, some couples choose to do a Collaborative-style process, where they each hire an attorney to advocate for them and a financial expert to assist with settlement negotiations. The financial expert will work with the parties to reach an agreement on the financial aspects of the settlement, while the parties work with each other on any non-financial elements of the case. Once an agreement is reached, the process looks a lot like an Uncontested Divorce.

A case where there are no young children is a good candidate for a Collaborative-style process. If kids are involved, or if there is considerable marital strife, the official Collaborative Law process may work better. A Collaborative-style case can be settled in 60 to 120 days. The official Collaborative Law process may take months to play out, though it can certainly move faster depending on how ready the parties are to cooperate. While more costly than an Uncontested case, a Collaborative divorce is typically less costly than a Contested case.

Contested

Many people decide to divorce because they can’t seem to agree about anything anymore. That makes an Uncontested or Collaborative Divorce less likely. When a divorce is contested, there are two primary paths to resolution.

Mediated Settlement

In Harris County and many other localities across the country, a Mediated Divorce is the most common type. Most counties require a couple to attempt to reach an agreement in mediation before they will allow litigation. Why? Not every case needs to be litigated. (I wrote all about the mediation process back in May of 2020.)

In a typical case where mediation is the dispute resolution method, each side will exchange information. This process can be formal or informal, but most information will be routed through the parties’ attorneys. Once information is exchanged, a date for a mediation session is set.

Many cases settle in a single round of mediation, but some will require two or even three rounds depending on how many issues there are and how much the parties disagree. This type of case may take 12 to 18 months to settle; it will likely cost more than an Uncontested case and possibly less than or about the same as a Collaborative case.

Litigated Judgement

Only the most complex and contentious cases end up in litigation. If you find yourself headed to court, it means that all other dispute resolution methods have failed. When preparing to go to court, you are likely to incur costs for formal discover[2], depositions, hired experts, pre-trial motions, and preparing your testimony. You’ll also be paying your attorney’s hourly rate while they appear with you at trial. Ask any family law attorney — they’ll tell you that going to court is stressful, expensive, and often less satisfying than you think it will be.

Think of litigation as a last resort, not a goal.

But litigation exists for a reason; in some cases, it is the only path to resolution. Such cases can drag out for years with costs running into the tens of thousands of dollars.

Divorce professionals like me are seeing a trend toward Uncontested, Collaborative, and Collaborative-style divorce cases. These divorces are faster, less costly, less stressful, and often leave the parties feeling better than they would if they pursued a more adversarial process. If you want to pursue an Uncontested, Collaborative, or even Mediated settlement, make sure you seek out an attorney who enjoys this type of work. And no matter how you think your case will proceed, interview more than one attorney so you can pick the one who fits you best.

The divorce process that is right for you will depend on the facts of your case, the personalities of the parties involved, and the attorneys each party engages. Bottom line: you don’t have to litigate to get divorced — you have options.

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Thank you to Candace Demary of Demary Law for her assistance in fact-checking this article.

Baird and Demary Law are not affiliated.

 

[1] The waiting period in Texas is 60 days from the date of filing. Waiting periods vary by state.

[2] Here, discovery refers to the formal exchange of information between parties in a case through interrogatories, requests to produce documents, and depositions. Formal discovery is much more costly than informal discovery

RB2020-1223