Keeping divorce out of the courtroom

On Behalf of | Feb 16, 2022 | Divorce

When couples in California decide to end their marriage, the whole family suffers. While divorce is a painful and destabilizing period of transition for everyone involved, staying together can be more emotionally scarring when fundamental personality issues between the spouses create constant conflict at home.

Unfortunately, those conflicts often spill into the courtroom during a divorce proceeding. For children of divorce, the trauma and insecurity they felt at home before can become dramatically amplified during a litigated process, as each parent vies for the control of assets, the family home, or their parental rights.

Fortunately for families in Oakland and San Diego, it is possible to find a non-confrontational way of handling divorce that can both protect the children from unnecessary stress and help spouses to move forward in a positive direction.

Alternative dispute resolution in divorce

Alternative dispute resolution (ADR) is any procedure that uses a neutral third party to help opposing parties come to resolution without taking their conflict to court. Collaborative divorce law is one of these methods. The main difference between this process and mediation, however, is that the neutral party in a mediation cannot give legal advice. In the collaborative setting, each spouse has an attorney to assist a negotiated settlement, and all parties sign a contract agreeing that they will not go to court.

According to one advocate of collaborative divorce, because litigation is inherently confrontational, it cannot protect the children when their parents square off in the courtroom. Unfortunately, couples are often not aware of their options when it comes to divorce and assume that they have no choice but to go to court.

There is a perpetual backlog in the family court system, as the complex laws that govern the process are not adequate to resolving many of the disputes that spouses bring before a judge. As a result, a litigated divorce can take one to 15 years, while a collaborative divorce will usually settle within three to six months.

Collaborative divorce in California

The California court system strongly recommends ADR methods to couples seeking divorce. In a collaborative divorce, both spouses not only have their own attorneys present who specialize in collaborative divorce methods, but also:

  • A mental health professional to work through difficult emotions that may come up
  • A financial advisor

As an interest-based negotiation, this process gives both sides an opportunity to come away with something of value. This can lead to an amicable resolution to conflict, better preserving the spouses’ family relationships after the divorce is over.

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