In a recent, tentative ruling, a superior court judge in Los Angeles County voided the disputed marital property agreement between Frank and Jamie McCourt – an agreement Frank McCourt claimed made him the sole owner of the Los Angeles Dodgers. The 100-page ruling by Judge Scott Gordon not only opens the door to a possible sale of the franchise, but also warns of additional and protracted litigation on the horizon. The contentious divorce is reportedly one of the most expensive in California history; it included a trial lasting 11 days in September.
Protracted litigation may weigh heavily in the minds many divorcing couples. There are, however, alternatives to courtroom litigation. Couples who arrive at resolutions in other ways may retain more control over the outcome of their property settlements and custody arrangements, while saving time and expense when compared to traditional litigation.
Nonlitigation Options for Divorcing Couples
Approximately 95 percent of Texas divorces are settled by agreement. The appropriate divorce option for each couple depends on the needs of the spouses and family members. Some alternatives may not be appropriate for cases involving allegations of abuse. Among the common divorce options are the following alternatives:
When the spouses agree on the terms of the divorce, the case is uncontested. In an uncontested divorce, usually only one spouse hires an attorney to draft and file the divorce documents, and go to court to have the agreement approved. The unrepresented spouse may be able to ask questions of the attorney, but the attorney will not represent both parties. Alternatively, both parties may wish to hire their own attorney to make sure that the written settlement correctly reflects the actual agreement.
This can be the fastest and least expensive option for divorcing spouses. After the divorce petition is filed, there is a 60-day waiting period in Texas. Once the 60 days have expired, the final divorce decree can be signed by both sides and presented to the judge for approval and signature.
Some parties may be tempted to create their own documents or to complete do-it-yourself forms online. Without the benefit of legal counsel, spouses may not accurately transcribe the terms of their agreement. If there is an imbalance in information available or bargaining power, one spouse may not understand what he or she is giving up in the agreement.
In the collaborative law model, the parties are each represented by an attorney, but agree to focus their efforts on settlement. The parties sometimes work with a team of collaborative professionals, including mental health and financial professionals, all working towards reaching a settlement that is in the interests of both parties.
Collaborative law is a client-driven process. The more relaxed and cooperative setting for the discovery and negotiation processes can expedite the divorce. Collaborative divorce replaces the adversarial focus on winning with a spirit of collaboration and involvement. These changes may help minimize the negative impact of divorce both on the couple and any children of the marriage.
Couples who are not able to reach a final agreement through collaborative law may still take their cases to court, but will need to hire new counsel.
In mediation, a neutral mediator facilitates the settlement negotiation. The mediator can offer the husband and wife an unbiased perspective. By acting as a neutral party and facilitating communication between the spouses, the mediator helps couples work to reach a settlement agreement.
Mediation can be completed voluntarily, or the spouses may be required to attempt reaching a mediated agreement before they are allowed to go to trial. The parties may also choose to be individually represented by attorneys in mediation.
Litigation can provide resolution for couples who are unable to settle in other ways. It can force a reluctant spouse to deal with the division of assets and liabilities, and address important issues of child custody and support. Divorce litigation can be expensive financially and emotionally. It can be time-consuming and, ultimately the decision will be made by a judge who does not know the couple or children involved.
Couples contemplating divorce should consult with a knowledgeable family law attorney. A lawyer can discuss their options for pursuing an efficient, cost-effective resolution that minimizes the emotional strain on the couple and any children involved.