3 Steps to Getting Divorced

WANT TO GET DIVORCED?  IT’S NEVER EASY … ESPECIALLY NOW

According to provisional data released by the CDC for the year 2017 (the latest year we have data for), the “marriage rate” is currently at 6.9 per every 1,000 people in the United States, while the divorce rate is at 2.9 per 1,000.  That means that (give or take), for every 7 people who get married, 3 are getting divorced – some staggering numbers.  Sadly, it seems like those numbers are only going to get bigger given our current crisis.

The COVID-19 Orders have forced all of us indoors, giving us lots of quality time with our spouses.  For some, that may help rekindle the love and give individuals newfound appreciation for their partners.  But for many others, it is leading them to an inescapable conclusion: they don’t want to spend the next emergency confined to the same house as their spouse.  It’s time for a divorce.

As China has begun to reopen, we’re already seeing this start to happen.  According to Bloomberg, divorce filings surged in March after the quarantine ended.  The same may happen here, or maybe it won’t.  There are certainly a lot of funny memes and YouTube videos about couples living through this pandemic, and it is something that many may be considering.  If you find yourself to be one of those people, you may wonder how do you go about getting divorced?

STEP 1: Get an Attorney

This blog isn’t meant to be a substitute to legal advice.  Finding an attorney and having a consultation with he or she, via Zoom, Microsoft Teams, Skype, What’s App or the good old fashioned phone, is critical as that attorney can help you through all of the following steps and give you important, individualized legal advice that is based upon the particular facts and circumstances of your marriage and children.

Of course, there are a lot of attorneys out there.  But you need to find one that can ensure he or she will give your case particularized attention and knowledge needed and one that you feel comfortable with.

STEP 2: Determine How You Are Going to Handle and, Hopefully, Settle Your Case

Generally speaking, a divorce consists of a host of issues, ranging from child custody and support, to parenting time, to alimony, to college contribution, to equitable distribution of property and counsel fees.  But, before you grab your weapon of choice and head to battle your spouse at the courthouse and let a judge decide these issues after a trial, consider alternatives.  The litigation process is long and complicated, and is guaranteed to cost you tens of thousands (sometimes hundreds of thousands) of dollars in legal fees.  What’s more, you’re putting your life in the hands of a stranger, who will know your family for a limited period of time and make a decision.  Why would you leave your life in the hands of a stranger in a black robe?

Competent attorneys are always prepared for the possibility of going to trial, but will try at various stages of the case to resolve all or some of the issues in the case if they can.  So, what options are there instead of going to trial?  The following is brief overview of the alternatives:

  1. Collaborative Divorce – is a formal process for resolving your matter out of court. Each party will hire an attorney trained in collaborative law, along with other collaboratively trained professionals such as coaches, mental health and financial professionals in order to obtain a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation.  This voluntary process starts with the parties signing a contract (“participation agreement”) requiring each party and their professionals to resolve the matter out of court.  In other words, no one can file motions or go to court until the case is over.  If the collaborative process is successful, the parties execute and an agreement and then go to court to be divorced.  If the collaborative process is unsuccessful, the parties leave the process and must hire new lawyers and professionals to proceed with their divorce.
  2. Cooperative Divorce – This is not a formal alternate dispute resolution process, but it is one often used. It is a way of approaching a traditional litigated divorce where the parties and their lawyers work cooperatively with each other to the extent possible and help the case resolve as simply and cost-effectively as possible.  However, unlike collaborative divorce, the parties do not sign a contract and they can continue using the same attorneys and professionals if the process fails.
  3. Mediation — If the case cannot be resolved with just the lawyers and the parties, mediation is a valuable alternative that may help settle the case. The lawyers will work with their clients to pick a mediator.  The mediator has the benefit of having no “skin in the game” that would bias him or her toward one side, and is usually highly experienced.  The mediator can help the two parties come up with creative solutions to fit their needs and sometimes can even give a party insight on what a judge may or may not do.  Often you can come up with a far more creative resolution that best fits you and your family than you will ever obtain in court.  Mediation is confidential, meaning you can’t disclose what is said in mediation, and non-binding so unless an agreement is reach and signed by the both parties, there is no resolution.  And either party can leave mediation at any time.
  4. Arbitration – This process, is less used, but another great option available to parties to resolve their cases. Arbitration essentially allows the parties to “choose their judge” and resolve their case out of court with the judge they choose making the decision in their case.  The parties will go through a similar, albeit more streamlined, process as they would in a traditional litigation in court, but before a private professional (oftentimes a retired judge) who will hear their case and make a determination on the issues presented.  This can be particularly useful in complex cases that require more time and attention to detail, but it is also a useful tool for litigants who want to keep their matter more private and focused.  Best of all, the process is usually shorter, as courts are currently backed up and trials may take years to actually take place.  And in arbitration the decision is usually final with limited rights to appeal the decision to another court.

STEP 3 (Hopefully): Sign an Agreement, and Get Divorced!

If your case does not go to trial or through arbitration, that means you’re settling your matter by way of a settlement agreement.  It is important that this agreement be as detailed as possible; do not skimp on the drafting to save a few dollars!  Doing so will only cost you more money in the long run when issues come up after you have been divorced.  And try to think of issues that may come up in the future and address them now.

Once you have signed an agreement, you can go to court to have the agreement made part of your divorce and formally get divorced by way of a Judgment of Divorce.  The Judgment will usually attach the agreement as an “exhibit” to the Judgment.  It is the Judgment of Divorce that makes you officially divorced.

IMPORTANT CONSIDERATIONS DURING COVID-19

During our current pandemic, it is important to keep in mind that the courts, although they are trying their best, are not fully operational.  Proceedings are being conducted remotely.  If filings increase after this crisis finally ends, combined with an already depleted bench due to judicial shortages and the existing backlog of pending cases, the likelihood is that the courts are only going to get more backed up as a result of this pandemic.

On the other hand, most attorney’s offices are open and many are handling matters remotely, including mediations and arbitrations, consultations, conferences, etc.  Many attorneys have their files available digitally so they can work more easily from home.  And the good news is that other businesses that are often involved in helping parties get divorce, real estate offices, mental health professionals, financial advisors, etc. have also adapted and are ready to help.

So what does all this mean?  Put simply, if you want your divorce to go through quickly, find a way to settle outside of court!  Try one of the alternate forms of resolution discussed above.  And, speak to an attorney.

If you need an attorney, or have any questions about the issues raised in this article, we encourage you to reach out to Daly & Associates at (973) 292-9222.  We may be working remotely, but we are here for you “Daly” during this difficult time.

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