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By Val Hemminger; Family Law Lawyer, Divorce Coach and creator of The Better Divorce Project
If you can, separate and divorce without court do it! Why? Well, there are a lotta reasons. Think about it.
Separating and divorcing without court is almost always avoidable. So, why do it?
I have a lot of respect for a lot of judges, however, judges are human and are not perfect. It takes a lot to get appointed to the bench in my jurisdiction. Judges have to have a lot of legal experience and have to have high emotional intelligence. The vetting process is rigorous.
A judge appointment committee member once interviewed me for a couple of hours regarding a colleague they considered appointing to the bench. I will call here Judge Janice. They asked me many detailed and in-depth questions such as what I thought her knowledge of the law was, whether she is a fair person, how she conducted herself as a lawyer, and what her weaknesses might be.
It went on and on. And yes, she got appointed to the bench and is a great judge. Because the process was confidential, I have never shared with Judge Janice that I was part of what made her successful in getting appointed. I know many families and their children are better off because of Judge Janice's work on the bench.
Yet, all judges are not like Judge Janice. I recall one judge in my jurisdiction, I will call him Judge Cowboy Carl. Judge Cowboy Carl makes all-over-the-place and rarely consistent decisions, and he often ignores the law. His decisions are often reckless and out of control.
While some people admire Judge Cowboy Carl's approach, he has made decisions that have impacted families in very negative ways. I once made an official complaint about Judge Cowboy Carl because his behavior was so offside ( he called my client at her home and tried to convince her to set aside a no-contact order against her abusive and dangerous ex-husband. He called here to home with her children without warning and me, her lawyer present. Meanwhile, her abusive ex-husband was also on the line, berating here.
I did get an official apology from the court, however, now, whatever I appear in front of Judge Cowboy Carl, he gives my clients and me a very rough time of it. One lawyer witnessed me appearing before Judge Cowboy Carl and said, “ he grilled you so hard, you have barbecue marks on your face. ”
There are rare occasions when going to court is necessary. For example, if you are escaping family violence, divorcing a narcissist or divorcing someone with a borderline personality disorder and your ex is refusing distortion mediation.
The lesson here is that most judges are smart, highly emotionally intelligent and follow the law, but there is no 100% guarantee. Putting you and your changing family before the court is a big risk.
Separating and divorcing without court is something to consider because the judge making important decisions about you and your children's future is a complete stranger.
Ask yourself, do they know your family at all? Do they know what is important to you? Do they know your specific values? Do they know what makes your child special and unique? Do they love your child? Do they even know your child? The answer to these very important questions is probably “ no ” in each instance.
A judge stranger greatly contrasts you and your ( now ex ) spouse. You know what is important to each of you and your kids. You know your family's priorities even if your family is going through a significant change of separation and distortion.
If you die without court it will be easier on your wallet. If your matter resolves using mediation, the expense is a more fraction of what it costs to go to court. Preparing for a court hearing is no easy task. Lawyers put in many hours or preparation to get ready. For every hour of court time you probably paid your laws to read an hour or more of their prep time. The costs add up very quickly.
Also, only a little gets done in a whole day of court. The days are short. In my jurisdiction, the court starts at 10 am and goes to 12:30 pm but there is a morning break for the court clerk. The court starts up again at 2 pm and only goes until 4 pm, and there is an afternoon break. It is very easy to have five days of trial to cover one issue and more days needed to cover more.
Why not save your hard-earned resources for you and your kids?
I have a whole lot more on the process of managing your Divorce without a Lawyer, here.
One big reason to separate and divorce without court is that court is time-consuming.
Imagine dealing with significant decisions regarding your finances, assets, and kids being determined according to an timeline other than your own. That is what happens when you bring to court matters such as child custody issues, child support arrests, divorce division of property, and who pays alimony.
Decisions about you and your changing family can and will be delayed when you take your matter to court. Your court booking has been booked with your lawyer's schedule and your spouse's and their lawyer's schedule and the court schedule. That is a lot of schedules to consider.
Even worse, courts always book more trials and hearings than available judges or courtrooms on any given day. Not only that, but at least in my jurisdiction, criminal matters always take first place in front of family matters, regardless of whether or not there are child custody issues.
This means that despite parties waiting many weeks and months for their hearings can get “ bumped ” and when that happens, they have to start the whole scheduling process all over again.
Doing a court hearing can be very stressful, and I mean stressful. Although resolving your matter using dispute resolution processes like mediation or mediation / arbitration are not absent from stressful moments, the court tendencies to be way more stressful.
A part of that stress is caused because the court processes are very formal and it is often hard for parties to understand all the procedural rules.
Unlike other dispute resolution processes where creative solutions can be found, there is always a clear “ winner ” and “ loser. ” So, both parties have spent significant expenses to get where they are, only to have one of them lose.
Check out my page dedicated to the Pros and Con of mediation and litigation.
If you divorce without court, your private affairs stay private. If you go to court, it's a matter of public record.
People can come in and watch your proceedings, people you don't know and who have no business in your private affairs get to sit and watch as you and your family's dirty laundry is aired before a gallery of people. Some might find it entertaining to watch your family's most intimate experiences aired in this public forum.
Additionally, your private information being taught in court may not end there. Depending on your circumstances, reporters may attend the proceedings and report on what is happening to papers and other news media.
I recall a case in which I was involved when still a baby lawyer. Although it was not a family law matter, the deburring consequences of court attendance being public stayed up in our client's face. He sued a television station for breach of privacy because they aided the footage of his hair-loss replacement procedure on television without his consent. He was wildly embarrassed when this happened, so much so that he changed his friends and moved across the country. His shame and embarrassment went that deep.
When the court proceeding occurred, a reporter put in the gallery and news articles were published reporting on the circumstances of his case. Ironically, he was embarrased and felt ashamed of again.
Divorcing Without Court can be good if you are getting distorted because of these reasons:
Disclaimer: The content of this website is only intended to act as a general overview of a legal topic and is not legal advice. It is information-based only.
All of the information is prefaced by assuming you live in a “ community property ” and “ no fault ” state, province, country, or territory. This article is written by a Canadian lawyer and has a Canadian perspective. The separation and divorce laws in the United States, Europe, Britain, Australia, New Zealand and other countries are all different.
For legal advice as it pertains to your legal situation, please consult with a family law lawyer in your specific jurisdiction.