By Andrea Hirsch
It’s one of those expressions firmly rooted in our culture – “I get to have my day in court.” In the case of criminal proceedings, it is a hard-fought right that offers protection for defendants. But for civil proceedings, and especially divorce, it’s not always a good idea.
Our courts are overburdened. Dockets are full, judges are overworked. For all their efforts to get it right, judges are only human. They make mistakes. They are subject to their own biases. As a result, their decisions may sometimes seem arbitrary or unfair.
This is why I’ve based my family law practice on settling things out of court. Couples can keep control of the process, reach decisions that seem fair to both, and avoid the time and expense of litigation. A litigated divorce can cost $100,000 or more by the time those expensive lawyers’ hours are added up. Few people have that kind of money to spend on divorce.
A judge has to sign off on any settlement, so everyone does get at least a review in court. But having all the details agreed upon ahead of time saves the couple, and their families, a lot of stress and money. Moreover, because they are tailored to your family’s specific needs, agreements are generally more durable – no need to go back to court for changes. Sometimes, when issues are complex or hotly contested, litigation is unavoidable. But in most cases, reasonable adults are better off taking control of their own future. Because that’s what divorce is about – the future, not the past.
In subsequent articles, I’ll go into more detail about various methods of out-of-court settlements, but here is a quick sketch:
- Negotiated Settlement. The most common form of resolving divorce issues outside of court. In these cases, each party is represented by an attorney to advise them and negotiate a settlement. Some settlements require more negotiation than others, depending on the length of the marriage and issues like retirement benefits, splitting marital assets and child custody and support.
- Mediation. A neutral mediator, trained in resolving disputes, listens to both sides, facilitates needed conversations and helps the parties find shared solutions. I am a trained mediator and also represent clients in mediation.
Prenups. These are essentially settlements agreed to prior to marriage and could just as easily be called pre-divorce. It sounds unappealing but can actually ease many of the strains on a marriage.
- Collaborative Divorce. This is relatively new form of alternative dispute resolution that I have made a focus of my practice. The two parties sit at the same table with their attorneys, mental health professionals acting as “divorce coaches,” and, if needed, a financial expert, and hash out the issues together. It may sound like a lot, but in practice it can save time and expense because everybody stays focused on the best possible outcome for the future.
Andrea Hirsch has more than two decades’ experience in family law. The Law Firm of Andrea E. Hirsch is located in the Collaborative Practice Center of Greater Washington, 1630 Connecticut Avenue, N.W. Washington, D.C. 20009, 202 480-2160, www.andreahirschlaw.com.