What is getting divorced in New Jersey really like? Many believe the divorce process involves making their case in “divorce court” with a judge deciding the terms of their settlement. In reality, going through divorce litigation (aka, “going to court”) is but one of six different alternatives available for New Jersey couples seeking to dissolve their marriages. Here’s a look at each available divorce method. Which one is right for your divorce?
Uncontested Divorce: When a couple’s divorce contains few disagreements or complex issues to resolve, it is known as an uncontested divorce or “no fault” divorce. In New Jersey, spouses in an uncontested divorce, and who are on reasonably good terms, can simply work together alongside their family law attorneys to negotiate a mutually acceptable marital settlement agreement. The MSA is then submitted to the courts and the divorce is finalized.
DIY Divorce: Rather than seek out legal counsel, some couples in an uncontested divorce decide to use a do-it-yourself (DIY) divorce kit or book to walk them through different laws and guidelines that apply when settling their marital issues. These issues include asset division and the splitting marital property, calculating child or spousal support, and creating child custody plans. DIY divorce is an out-of-court process with both parties meeting on their own to hash out a marital settlement agreement. Those who embark on DIY divorce typically do so because of the perceived time and cost savings. The downside? New Jersey family law is complex and constantly changing, making it easy to make a mistake, often a very big mistake, that will take all that time and money you saved in order to fix it. We understand the potential allure of DIY divorce, but recommend proceeding with caution. For further reading, see:
Pitfalls of Handling Your Own Divorce
A Do-It-Yourself Divorce Gone Wrong
Divorce Mediation: When a couple opts to mediate their divorce, it means they agree to try and settle their divorce matters out of court with the help of a neutral third party called a mediator. A mediator is someone (typically a family law attorney) the couple hires together. The couple meets with the mediator to work through the issues of their divorce. The mediator is not a judge. His or her role is to provide feedback on the law and foster a cordial, focused atmosphere.
In a typical divorce mediation session, you may take turns identifying your individual needs and wants. The mediator then tries to facilitate a settlement discussion, talking about compromises that might make sense in your situation. However, a mediator only makes recommendations when asked — his or her sole goal as a neutral professional is to get the parties to come to a resolution that they can both live with. Mediation is considered another lower cost uncontested divorce alternative.
Arbitration: Getting divorced through arbitration is similar to mediation in that it allows couples to reach an out-of-court type settlement, but the third party involved — the arbitrator — is the one who in the end decides the terms of the divorce, much the same as a judge would in court. In a typical arbitration session, the arbitrator, usually a lawyer or retired judge hired by the couple, sits in a room with a stenographer and takes testimony. Unlike the give and take of mediation, you need to go into an arbitration meeting prepared and ready to present your case to this person in the exact same way you would a judge. After listening to both sides, the arbitrator deliberates and then hands down a binding decision that you will need to live with (or go to court to appeal).
Arbitration is not typically used by couples in an uncontested divorce. Rather it is an alternative that tends to appeal to couples dealing with contested divorce issues. Because the New Jersey family court system can be a slow process, arbitration is considered quite efficient in comparison.
Collaborative Divorce: Collaborative divorce is another out of court divorce settlement method (also called an “alternative dispute resolution” method). The process requires each party to hire an attorney who has received special training in collaborative divorce. The role of the attorneys in a collaborative divorce is quite different than in a traditional divorce, with attorneys taking more of a direct role in negotiations. The collaborative process may also include other neutral professionals, such as a child custody evaluator or financial advisor, brought in to help the couple reach the best decision in their matter. As a way to help couples remain committed to divorce negotiations, the collaborative process requires all parties to sign an agreement requiring both attorneys to withdraw from the case if a settlement is not reached and/or if litigation is threatened. If this happens, both spouses must start the divorce process over again and find new attorneys.
Divorce Litigation: If divorce brings to mind thoughts of arguing your case in front of a judge, what you are really thinking about is divorce litigation. In New Jersey, very few divorces actually end up in court, mainly because of the four other alternatives available. With that said, some contested divorce issues are best settled by a judge. For example, if the two of you can agree on everything except child custody, you could mediate or negotiate all other issues and then go to court to have a judge hear this one and only contested issue. In New Jersey, divorce litigation can be costly, depending on the issues involved. However, if you feel must have your day in court as a result of your divorce, family courts is an available option and one that may be best-suited to your needs.
Need help deciding which of these divorce alternatives is right for your divorce? Please contact us to schedule a free one-hour attorney consultation to discuss your matter in-depth.