When most of us hear about divorce proceedings, we think about the countless times we have to appear in court and the conflict involved. This can be overwhelming, especially because court hearings are scheduled with little or no consideration for your schedule. You possibly want to get through your divorce quickly and without the hassle. But can you go through a divorce without going to court?
If you want to avoid the extra conflict and have a smooth divorce process, there are other options you can use that do not involve the court. But, it is essential to have a lawyer, even without the court appearance, to help you protect your interests. This blog gives you insights into avoiding a court process when going through a divorce in California.
How to Avoid Going to Court in a California Divorce
California state law allows you to get divorced without involving the courts. You and your spouse can use three alternative options to settle your issues without setting foot in a courtroom. To begin with, both of you must reach an out-of-court settlement agreement. After signing the settlement agreement, your lawyer will move to court to file the paperwork on your behalf.
You can involve legal counsel to help you resolve your issues even if you and your partner still have unresolved issues. The legal counsel can help you reach an agreement instead of going to court.
Here are a few options that you can use depending on your personal goals and financial stability:
- A collaborative divorce
- Mediation
- A negotiated Settlement
Here are the legal definitions of each method:
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Collaborative Divorce
When you and your spouse decide to end your marriage, you want to get through your divorce quickly and move on with your life. Although some issues are hard to resolve without a judge, you and your partner may be on good terms and decide to set the terms of your divorce as a team. A collaborative divorce can be a good option if you choose not to take the matter to court.
In California, collaborative divorce is also termed collaborative practice or collaborative law. It is almost similar to divorce mediation in that in both cases:
- Both methods allow you to get divorced without going to court
- Both parties work together in a non-adversarial manner to resolve their issues together with their legal teams
- Both processes involve lower conflict than litigation
- You both get to decide the terms of your divorce, unlike litigation
However, several key features make collaborative divorce different from mediation. These features include:
- If you choose to use collaborative divorce, you and your spouse must sign an agreement that you have both agreed to resolve your issues out of court.
- In collaborative divorce, you will need a divorce attorney who is specially trained in collaborative practice.
- In collaborative practice, you all negotiate with your attorneys, unlike in mediation, where most meetings involve the mediator and spouses (and attorneys at times).
- If the collaborative law fails, your family law attorneys must accept to withdraw from representation, and you will have to go to court.
- Unlike in mediation, where you can choose to settle some issues and solve the rest through litigation, collaborative divorce requires you to commit the entire process from the beginning till when your problems are resolved. Failure to which you will be forced to start over, and you may not be allowed to use the documents you used in the collaborative process at the beginning, which can be devastating.
- Both collaborative divorce and mediation focus on problem-solving and troubleshooting, unlike litigation which is more of like a “fight and win” case. However, collaborative divorce is more structured and rigid, which makes it unfavorable for some people. If your issue needs a more flexible approach to resolve, then mediation could work better for you compared to collaborative divorce.
If you want help figuring out which method works best for you, call us at the San Diego Divorce Attorney today.
What are the Advantages and Disadvantages of Collaborative Divorce?
The advantages of collaborative divorce include:
- The process takes less time, and it is more efficient compared to litigation
- It allows you to resolve your divorce out of court
- It creates room for an honest and civil talk between both parties
- You and your partner negotiate and come up with a final decision instead of having a “stranger” (judge) do it for you
- The only public record of your divorce is your final judgment
- Your legal team can develop a creative remedy to your issues since the “no court” agreement drives them
The disadvantages of collaborative divorce include:
- For you to reach an agreement, both parties should compromise
- If you try collaborative divorce and it fails, you will have to begin your divorce again but with new legal representatives, resulting in lost time and resources
What is the Process of Collaborative Divorce in California?
Collaborative divorce includes several steps, which include:
Hiring a Collaborative Lawyer
You and your spouse need to hire individual attorneys when starting the collaborative divorce. It is essential to hire a specialized collaborative attorney who has been trained in collaborative law. Before the process begins, you will meet your attorney privately to discuss the following:
- Your priorities in your divorce or the things that matter the most to you
- The things you are willing to compromise on
- The limits of what you can entertain and what you can’t
Setting goals and boundaries before the process begins helps both parties to have a smooth and easy negotiation.
Agreements Signing
Before the process begins, both parties will need to sign documents. One of these documents is the Collaborative Practice Participation Agreement (PA). On this agreement:
- Both parties agree to settle all your disputed matters out of court
- Attorneys agree to withdraw representation if the collaborative process fails and both parties decide to go to court
Under the PA contract, both parties agree to:
- Openly and honestly share your goals and interests
- Handle settlement negotiations in good faith and respectfully
- Disclose financial information and other relevant information willingly
If both parties cannot reach a settlement agreement through this process, you will be required to hire new attorneys to move the divorce to court.
Meetings Negotiations
Negotiations of a collaborative divorce happen in “four-way” meetings that involve you and your spouse and individual attorneys. Neutral third-party professionals are usually present in the meetings to help you develop a solution for your problem using their knowledge and expertise. If you and our spouse have a high net worth, these meetings may involve:
- Child custody and parenting experts
- Asset valuation and appraisal specialists
- Mental health coaches
- Wealth management experts
If need be, you can invite a licensed mediator to help with the negotiations.
Signing and Filing Settlement Papers
After both parties have reached an agreement, the attorneys will draft a written settlement agreement based on the negotiations. Both parties will be required to sign the agreement, after which your lawyer will file the paperwork with your local family court.
This is a simple and uncontested step since both parties have already resolved all your issues through the collaborative divorce. After the court is done processing your paperwork, the divorce becomes official with your settlement terms.
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Divorce Mediation
Being divorced does not mean that you and your spouse should be enemies. It is wise to maintain an amicable relationship with your spouse even after your marriage is over, especially if children are involved.
You and your spouse can choose to settle your issues through divorce mediation rather than going to court. This way, you will both have control of the process, and you can plan according to your schedule, unlike litigation. Most people use this to resolve divorce since it causes less emotional torture than litigation.
If you consider using divorce mediation, our skilled attorneys at The San Diego Divorce Attorney can help you protect your interests and offer possible guidance.
What are the Advantages and Disadvantages of Divorce Mediation?
The advantages of divorce mediation include:
- You and your spouse get to decide the terms of your divorce
- You are in control of the process and the scheduling
- You can hire an attorney to represent you legally
- The process can easily help improve communication with your partner
- This process takes less time compared to litigation
- Any financial or personal information shared during the process remain confidential
- The process works best when both parties have common interests
The disadvantages of Divorce Mediation include:
- For the mediation to be successful, both parties should be willing to compromise and be open
- The mediators have no right to order you or your partner to cooperate. If any party does not want to cooperate, they delay the proceedings
The Process of Divorce Mediation
Divorce mediation is a process with various stages like:
Finding a Divorce Lawyer
You and your spouse can decide to use mediation at any port of the divorce process, and the first thing you should do is hire an attorney to help you protect your interest. If both parties have the same negotiating power, you can hire one attorney as your mediator. You can also decide to hire a mediator to start with, but you can hire an attorney if the issues become complicated.
Mediation Introduction
Whatever you do or say during this first meeting will set the tone for the rest of the mediation process. At this stage, you and your spouse plus your mediator will meet to:
- Choose the most suitable approach to solve your issues
- Set expectations for the mediation process and the outcome
- Evaluate where you and your partner disagree the most
- Discuss the issues that are at stake in your divorce process
- Tell a background story of the situation (where it all began)
Gathering of Information
The gathering of information can take up to three sessions to complete. This process can take place during your first mediation session or after. It is essential to ensure that every party involved in this process has all the relevant facts of the case. Your mediator can also help you access any information that is unavailable or under dispute.
During this process, you may also be required to provide your personal information and financial records like bank statements. After the mediator has analyzed the information from both parties, they will inform you of the legal laws that should be implemented for this particular issue.
Framing Needs and Interests
In this stage, the mediator will summarize the needs and interests of you and your spouse. They may cover spousal support, child custody, debt division, property division, and child support. You and your spouse may decide to complete this in a joint or separate session.
Negotiation
This stage mainly focuses on problem-solving. After the needs and interests of both parties are established, the mediator will help both parties negotiate. The mediator will try suggesting the different available options to solve your issues to achieve a mutual settlement.
Every party must be willing to compromise to reach an agreement. You can discuss until you find options that work best for the goals and interests of each party.
Settlement
After addressing the most critical issues, the mediator will draft a settlement agreement and forward it to each party. With the help of your lawyer, read all the terms to ensure that your interests are covered. You will then be expected to sign and send it back to the mediator. After both parties have signed and submitted the settlement agreement, the mediator will file the paperwork with the court.
The judge will review the paperwork to ensure it maintains the children’s best interest and adheres to California’s law. They will then issue a judgment to dissolve your marriage, and the divorce will become official.
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Settlements and Negotiated Divorce Agreements
If you want a private, less complicated, and out-of-court divorce, you should consider using a negotiated divorce agreement. This process allows both parties to come to a resolution without going to court. It is also cheaper than litigation, and you will only communicate with your spouse on rare occasions.
Both parties hire individual attorneys who help them negotiate an agreement. This is a quicker and faster divorce approach which is why most people use it to resolve their issues.
The Advantages and Disadvantages of Negotiated Divorce Agreement
The advantages of divorce settlement include:
- Your attorney will represent you
- It is less stressful compared to going to trial
- You will incur lower costs and save resources and time compared to going to court
- It is easier to reach an agreement than in litigation
- The process is private and confidential
The disadvantages of divorce settlement include:
- If our spouse does not want to compromise, you will have to either go to court or give in to your spouse’s demands
- You will have to compromise on some of your partner’s demands to reach a mutual agreement
How Does Settlement and Negotiated Divorce Agreement Work in California?
Negotiated divorce is a process with various steps, including:
Finding a Divorce Lawyer
After you decide to end your marriage, the first thing you should do is hire a divorce attorney. Each party should hire an individual attorney to represent them. Having a skilled divorce attorney at your corner is crucial to ensure that your interests are protected.
Filing Divorce Petition
The divorce process begins when you or your spouse file a divorce petition with the court and serve the other party with a copy of the same.
Tentative Agreements
Lawyers from both parties work closely to create tentative agreements for things like child support, child custody, and debt payments. These are short-term agreements set by the court to ensure no party will change the agreements before coming up with a permanent solution.
Gathering Information
During this process, both parties are supposed to exchange a PDP (Preliminary Declaration of Disclosure). The PDP contains the other party’s debts, assets, income, and other relevant financial details. You can use the help of your lawyer to determine if your spouse is hiding their wealth.
Creating a Settlement
Both attorneys will analyze the wealth of each party to be able to create a settlement offer. If the process gets complicated, they can seek help from specialists like forensic accountants. Ensure you hire a skilled divorce attorney who will protect your interests while creating a settlement offer.
Please note that both parties might not reach an agreement at this point. At this stage, you can go to court.
Find a San Diego Divorce Lawyer
The divorce process can be challenging and overwhelming. That is why you need to hire an experienced divorce attorney to help you protect your interests. Our attorneys at San Diego Divorce Attorney are experienced in handling successful divorce cases out of court. We are here to offer support in every step and help you protect your family and assets regardless of your background. Call us today at 858-529-5150 for a free and confidential consultation.
