Nolo's Essential Guide to Divorce - Emily Doskow [12]
Get more information. For more information about collaborative divorce, check out Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner (Nolo), or Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on With Your Life, by Pauline Tesler and Peggy Thompson (HarperCollins).
Arbitration
In arbitration, you and your spouse agree that you'll hire a private judge, called an arbitrator, to make the same decisions that a judge could make, and that you will honor them as you would a court decision. Arbitration has some of the same advantages as mediation does, including speed, efficiency, privacy, cost-effectiveness, and informality.
Arbitration has been used for many years in other kinds of lawsuits, and it's starting to gain favor among divorce lawyers as a good alternative to a court trial. The arbitrator is usually a lawyer or a retired judge, who you pay hourly. Your lawyer and your spouse's lawyer know lots of arbitrators and will probably be able to agree on someone who'd be appropriate for your case.
Just as in a trial, each side prepares arguments and evidence and presents them to the arbitrator, and then the arbitrator makes decisions. However, the presentation of evidence is usually less formal than in a courtroom. You're likely to be able to schedule a hearing with an arbitrator much more quickly than you would get a case to trial, so speed is a major advantage. It's also private, unlike a trial, which is open to the public. (Your court records will still be public if you use arbitration, though.)
Cost is another upside to arbitration; although it's still expensive, it won't cost as much as a trial. That's because it shouldn't take quite as long for your lawyer to prepare for the hearing, and the arbitration itself may be shorter because the arbitrator won't be as strict about evidence as a judge would be.
An arbitrator's decision generally is binding, which means if you don't like it, you can't ask for a do-over and go to court for a second chance. You also can't appeal the decision to a higher court, so you are stuck with whatever the arbitrator decides. Because of the inherent unpredictability of divorce cases, some people don't like that ideathough some might appreciate the certainty that arbitration offers.
Contested Divorce
If you and your spouse argue so much over property or child custody that you can't come to an agreement, and instead take these issues to the judge to decide, you have what's called a contested divorce. The judge and court clerks will be the main players in your divorce case. (There are no juries in divorce trials, except in Texas and Georgiaand in Georgia, the jury can't decide custody or visitation, only financial issues. In a minority of other states, you can ask for a jury trial on the issue of grounds or entitlement to divorce, but this is very unusual.) Most divorce trials are not long, drawn-out affairs like trials you may have seen on television. Many take a clay or two, or even just a morning.
The trial itself may be short, but the entire process is long and hard. It will take a huge emotional toll on you, your spouse, and certainly your kids, and also cost you in dollars and cents. A contested divorce, even one that ends in a settlement rather than a trial, can cost each spouse many tens of thousands of dollars. Assuming each side's lawyer charges $250 per hour, and assuming an ordinary amount of information-gathering and pretrial court proceedings, an average divorce might run each of you $30,000-and that figure could easily go higher with a few added complexities.
Which brings us back to our initial advice: Take the high road whenever you can. The rewards