Family Law Attorneys
Bronx, Westchester & Eastchester, NY
Alternatives to Marriage and Family Law Litigation
Retaining Counsel is a Serious Matter
Authorizing an attorney to act on your behalf with respect to your domestic situation is a serious matter and should be undertaken only after extensive soul searching, substantial consideration, and full exploration of all alternatives.
With that said, you may have reached the point where you have decided to seek a divorce or legal separation, and you wish to retain an attorney to advise you on how best to handle the many issues you are facing, such as:
- property distribution
- custody of the children
Settling Differences Amicably
You may want to settle your differences amicably, but are concerned that you and your spouse are having great difficulty communicating and cannot seem to reach a consensus on these issues.
What should you do? Does this mean you will end up fighting it out in Court? Do you have to spend thousands of dollars in order to go before a judge to resolve your issues? Is it inevitable that you will have to experience the negative emotional impact of a contested divorce?
The answer is, not necessarily.
Mediator or Attorney May Help Resolve Issues
Just because you and your spouse cannot agree now, does not mean that, with the assistance of counsel and/or a mediator, you cannot work things out.
No judge knows your relationship like you do, and you will almost always be better served if you remain the master of your own fate.
If possible, you should speak to an experienced family law attorney to discuss all of the available options before deciding what action to take, if any.
In this context, an impartial mediator can help you and your spouse try to reach an understanding that you can both live with.
A mediator is able to discuss the issues in a non-emotional way, which often helps make it easier for you and your spouse to settle your differences.
Unlike a judge, a mediator does not make decisions for you. Instead, he or she acts as an impartial voice of reason, and this may help you and your spouse reach an agreement you can both accept.
The mediator will help you talk through the issues and will create an environment conducive to an open dialogue.
Even if you cannot resolve all of your issues in mediation, it is possible to resolve some of them in order to narrow the focus of your case, if and when you and your spouse engage independent counsel to continue the discussions or you take your case before a judge
Out of Court Settlement Negotiations
Of course, mediation is not the answer for everyone. The issues may just be too complex and/or emotions may be running too high. As an alternative, you and your spouse may try to handle your divorce or separation amicably with the assistance of retained counsel, outside of court.
Both Parties Retain Counsel
If both parties agree, you and your spouse will each retain independent counsel and attempt to resolve your issues without the need for litigation. Your individual attorneys will advise you separately about the issues and your rights and responsibilities under the law.
You and your spouse will then agree to voluntarily provide each other with full financial disclosure and will retain experts, where necessary, to value your property.
Drafting an Agreement and Negotiations
Your attorney will draft a proposed agreement and present it to the other attorney as a starting point for negotiations.
From this point on the attorneys, in consultation with you and your spouse, will attempt to narrow the issues and work toward reaching a consensus.
In addition, if the parties are open to it and feel it will help, one or more four-way meetings can be arranged during which the parties will attempt to hammer out the issues.
If successful, these discussions and meetings will ultimately result in a written agreement settling your issues which can later be submitted to the court (with additional supporting documents) in order to process your divorce as an “uncontested” matter.
This means that you and your spouse have each agreed to be divorced and consent to a Judgment of Divorce being entered without the need for any court appearances.
The agreement you have reached will be incorporated into your divorce decree with the same force and effect as any other order issued by a judge.
In other words, all of the provisions of your settlement agreement (property distribution, custody support etc.) will be enforceable as a court order.
More Cost Effective and Efficient Process
Generally speaking, this type out of court negotiation process moves much faster than any litigated proceeding and will almost always dramatically reduce your costs.
Of course, if you and your attorney are unsuccessful in reaching an agreement with your spouse, you still have the option of litigating your case in court.
Consent of Both Parties Necessary
Although the advantages of an out of court settlement are clear, it is important to remember that this process will only work if both parties agree.
If only one party wants to settle, this process will fail. You cannot force someone to participate in settlement discussions.
Consequently, it is useful to know whether or not your spouse will be “on board” or open to the process before you and your family law attorney make the decision of whether and how to proceed.