What Are My Alternatives to Divorce Court?

Some families are not well-suited to the conflict and high tension of an adversarial divorce trial. If divorce court sounds expensive, time consuming, and unhealthy, you may want to consider out of court alternatives. Which one is best for you will depend on the issues in your case, and how well you and your spouse get along, among other things. You should carefully consider alternative dispute resolution (ADR) options with your divorce lawyer before gearing up for trial.

Can You Get a Divorce Without Going to Court in Maryland?

The short answer to whether you can get a divorce without going to Court in Maryland is no. Only a judge can dissolve your marriage by signing a Judgment of Absolute Divorce. That will require a court hearing in front of a judge.

But going to court and going to trial are two very different things. Using an alternative to divorce court, you may be able to resolve your marital issues out of court, before filing your Complaint. Maryland offers a Mutual Consent Divorce option for couples who can come to an agreement on their own. While at least one spouse still needs to appear in court, the single hearing in a Mutual Consent Divorce is short – often taking just five minutes – and often occurs within 45 days after the Complaint and Settlement Agreement are filed. That is far quicker and more convenient than traditional divorce litigation.

Why You Might Want a Divorce Without Court Involvement

No one knows your case like you do. Maryland judges hear thousands of divorces each year. They will never be able to consider every detail in every case. Their decisions often leave both spouses unhappy. You might want a divorce without court involvement to:

• Keep control over the outcome of your case
• Protect high-priority assets
• Shield your privacy from public court records
• Resolve matters more quickly
• Avoid me-versus-them mentality to improve future coparenting
• Protect your interests from perceived biases within the court system

Alternatives to Divorce Court

Each ADR process has its pros and cons. However, they are all options to help parties reach agreements and obtain an out of court divorce.

Negotiation

The least formal alternative to divorce court is negotiation. For some families, this happens entirely without lawyers at the kitchen table. For others, attorneys for each party can facilitate discussions in real time, or through the exchange of written settlement offers. Once all the issues are resolved, you can use the resulting Separation Agreement (also called a marital settlement agreement) to get a Judgment of Absolute Divorce.

The pros of negotiation are that it is relatively inexpensive and puts you and your partner in total control. Negotiation can also be done at any stage – even days before a divorce trial. Negotiation works best in families with limited resources, or where both parties are strong communicators with relatively equal bargaining power.

The main con for negotiation is the lack of structure. With no time constraints or other guidelines, negotiation can last indefinitely and may never result in agreement. When negotiation fails, the breakdown in communication can also harm future efforts to coparent or interact civilly.

Mediation

Mediation offers a neutral third-party to help parties communicate and stay on track. Mediation is a voluntary process where both parties work with a neutral facilitator to address concerns and resolve issues. Just like negotiation, mediation often happens while divorce litigation is pending. However, if you want an out-of-court divorce, you and your spouse may choose to meet with a mediator before filing your Complaint. Then, you can use the resulting mediation agreement to get divorced.

The pros of mediation include the same control over the outcome and reduced costs as negotiation. Mediation also provides more structure, including time limits, to help guide both parties toward resolution. Mediation works best when both parties are willing to compromise, and motivated to reach an agreement.

The cons to mediation often come from problems within a couple’s communication dynamics. Mediation may fail if one party has more bargaining power (such as in domestic violence cases) or if both parties don’t have access to financial records or account balances.

Arbitration

Arbitration looks like informal divorce litigation in front of a privately hired judge. The arbitrator may help the parties negotiate a resolution. However, if the parties fail to negotiate a resolution, the arbitrator has the authority to make a binding final decision based on the testimony of the parties and the evidence before them.

The biggest pro of arbitration is that it has a definite end. At the end of arbitration you will have a divorce resolution. Arbitration also doesn’t follow the same rules of evidence as a Maryland divorce court, so you can give the arbitrator more information about your family’s situation without worrying about issues like hearsay. Arbitration can work well in high-conflict cases where the need for a final decision is stronger than the need for ongoing collaboration. It is also often faster to get a hearing in front of an arbitrator than a trial in front of a judge.

However, there are many cons to arbitration. It can be expensive to hire an arbitrator. Also, when parties sign an arbitration agreement, they often waive their right to appeal the decision if the arbitrator applies the law incorrectly. Arbitration is fairly uncommon in Maryland family law cases.

Collaborative Divorce

Collaborative Divorce pairs parents and spouses with skilled coaches, therapists, and professionals to help them deal with the emotional challenges and financial changes that come with divorce. The process looks a lot like negotiation – with the parties and their attorneys meeting to work out divorce issues. However, the work between those meetings is designed to help the parties learn problem solving techniques and communication styles that will make them better co-parents in the future.

The pros of collaborative divorce come from its transparent, proactive, and respectful approach to family disputes. It isn’t just about resolving today’s issues, but learning a system for addressing conflicts that arise in the future. Collaborative treats the parties with dignity and helps both parents understand one another’s perspectives. Collaborative divorce is often seen as a more holistic alternative to divorce court.

The biggest cons to collaborative divorce is cost and scheduling. Collaborative is more expensive than negotiation or mediation, and frequently there can be delays due to the demands of collective scheduling. However, if you factor in the cost of expert witnesses and protracted litigation, Collaborative is often still cheaper than going to trial. In addition, the tools learned in the collaborative process reduce the risk of parties returning to court for post-judgment issues, so it may end up being considerably less expensive than traditional litigation long-term.

At the Law Office of Shelly M. Ingram, we understand that no one ADR tool is right for every family. If your goal is to keep your divorce out of court, we will meet with you and help you identify the ADR process that is right for you. If you have a legal need and would like to speak with an attorney, please call us at (301) 658-7354 or contact us through our website to schedule a consultation. We look forward to working with you.