There are three ways to get divorced—two of them should be avoided if possible—accepting, of course, that there are some spouses who insist on litigation and a trial. Understanding your options from the beginning can help save you time, money and emotional trials.
- Explore three divorce methods focusing on agreement-based settlements to minimize cost and emotional impact.
- Understand the litigation process if settlements fail highlighting the financial risks and exhaustive resources involved.
- Trials bring unpredictability with potential for costly appeals—ensure thorough preparation with financial documentation.
- Find out how legal management strategies, including mediation, offer essential support during complex international family law cases.
1. Divorce By Agreement
Experienced family lawyers will ask you if you would be willing to settle your divorce through a negotiated agreement. A comprehensive martial settlement could address custody, child support, alimony and division of marital property. Then, when the required separation period has passed, you proceed to a very short hearing at which your agreement is incorporated or merged in your divorce judgment. Often neither spouse has to attend.
While reaching an agreement, there can be intense negotiations. Your lawyer will need all the financial information from your marriage to negotiate an agreement on your behalf. You may also have to go to mediation to get the agreement done. But this approach is so much better than contested litigation. It’s not inexpensive, but it’s also not likely to exhaust assets or derail financial stability after divorce.
2. Divorce Through Litigation
If an agreement cannot be reached or is not possible, litigation becomes the next step. At this stage it is important that your lawyer clearly explains:
- All the procedural steps the court will require you to meet
- The strategy to be adopted
- The expected financial and emotional costs
Most family courts have family management plans for divorce cases that set deadlines for the exchange of financial documents and conducting discovery. These plans often require court mediation before any interim hearings or trial dates are scheduled. Litigated divorces are resource exhaustive. There are several items that can increase costs such as:
- Attorney fees
- Expert witnesses
- Discovery disputes
- Multiple court appearances
3. Divorce Via Trial
When divorce proceeds to trial, outcomes become significantly less predictable. For instance, a case may not be heard by a specially trained family law judge who practiced as a family lawyer before becoming a member of the bench. Many courts rotate the assignment of judges—some of them have little family law training—to sit on the family trial rotation for up to a year. So, your lawyer may have to educate the judge. Even a favorable ruling may come at a significant cost.
The Appellate Process
If you lose at trial (or even if you win), then you may have to move up to the appellate level. Unlike courts in most other countries, appeal courts in the United States do not hear new evidence. The appellate courts are courts that make their decision based on the record made in the trial court.
These courts only hear what happened in the trial court below and the appellate courts must consider the trial court's decisions based on certain standards they must apply depending on the issues. Some questions an appellate court might consider include:
- Did the trial court abuse its discretion?
- Was there a legal error?
- Is this the type of case where the court must look at the whole “record” from top to bottom?
Experience teaches that most appellate courts affirm the trial court or send the case back down to the trial court for them to revisit whatever issue needs to be addressed.
This takes us back to getting divorced by agreement. The costs of litigating your divorce can be enormous and an appeal can be even more expensive. This is why it is imperative to do all you reasonably can to work with your soon-to-be-former-spouse. Keep your share of the marital funds for yourself—or better yet, your children
Stephen J. Cullen and Kelly A. Powers have established one of the leading international family law practices in the United States. As co-leaders of Miles & Stockbridge’s family law and private clients practice in D.C., they work on complex international divorces, custody and financial relief in the United States and around the world. They also are well-known for their work in addressing child abduction issues.
