The Downsides of Courtless Divorce

Understanding the Drawbacks of Forgoing Divorce Litigation

by Michael Heath

Ending a marriage through  courtless divorce certainly has advantages. When couples reach a divorce agreement prior to filing paperwork with the court they control the process, save money, speed up the dissolution procedure, reduce hostilities, and ensure privacy. Although these features may be attractive to many, it is important for spouses to know what they give up with a courtless divorce.

The Basics of Traditional Divorce

The traditional way of ending a marriage is for a spouse to retain an attorney before filing a petition for divorce with the county courthouse. A case is opened, and then a judge is assigned. The other spouse gets their own lawyer who responds to the petition. Each lawyer gathers information while building a case in what is known as discovery. When that is completed, the two lawyers negotiate on behalf of their clients in an attempt to reach a divorce agreement. If an agreement is not reached in whole or in part, then the case could end up in court.

Choosing a Courtless Divorce

Since traditional divorce is a position-based, tug-of-war type effort it is inherently adversarial. On the other hand, the courtless approaches of mediation and collaborative divorce use cooperation, honesty, and transparency as the cornerstones of the process. Both spouses work together to gather information for one shared file. When the couple negotiates, they do so by balancing assertiveness with empathy to arrive at solutions that satisfy both.

What Courtless Divorce Does Not Provide

Courtless divorce has its upsides although it is not for everyone. There are some facets of litigation that spouses may be unaware of and should understand before choosing a direction:

• Advocacy: In litigation the spouse has a lawyer who fights for them. In courtless divorce the husband and wife are mostly on their own, negotiating for themselves.
• Powers of the court: Courtless divorce is the reaching of a divorce agreement prior to filing with the court. Since there is no case or judge assigned, motioning the court for subpoenas, depositions, or other legal remedies are not available.
• Expert discovery: In litigation, paralegals carry out the formal discovery process to ensure that all pertinent information is accumulated and organized. Spouses who choose courtless divorce perform their own informal discovery, an exercise that is unlikely to be as thorough as one executed by a litigator’s paralegal team.
• Court imposed discipline: Spouses must follow judge’s instructions and court procedures like showing up to hearings, providing evidence, and acting appropriately. Courtless divorce professionals are not empowered with the same jurisdiction.
• Guarantee: In litigation the marriage will come to an end, even if it takes a judge to hand down a decision. Although courtless divorce has a very high success rate, mediators or collaborative attorneys have no authority to bring the process to conclusion. Failing to come to an agreement would mean starting over in litigation with all previous work nullified.

Deciding

It is easy to see why so many spouses in failed marriages want to learn about courtless divorce approaches. Understanding the pros and cons of litigation is just as important. Knowledge of the different methods to end a marriage ensures better decision making.