Often, It’s Smart To Stay Out Of Court
The depiction of divorce as a bitter fight between two adversaries who pummel each other during heated and protracted litigation is not a myth, but it has become less prevalent. Many litigants today seek to resolve their dispute with cooler heads and a cooperative spirit.
A number of family law tools and processes are available to reach agreement on the important matters that must be resolved in their litigation without going to court. At Mackoy, Hernandez, Jones and Woods LLP in Frisco, we encourage a cooperative effort between parties and work closely with our clients to make them aware of the various means to resolve disputes.
In an uncontested divorce, the parties reach agreements on the terms of the divorce without the need for contested litigation. While truly uncontested divorces are rare, they can and do take place, even when the custody of children, alimony and separate property issues are contained in the final Decree of Divorce. The important point to remember is that “uncontested” means the parties have reached agreement on all matters, however they will still need to file legal documents and present them to the court for entry. Many people who make the choice to have an uncontested matter still use an attorney to ensure their documents are property and timely prepared and filed.
If you and the other party in your disputed family law matter cannot reach agreement on all the terms for resolution of the matter — parenting plans, child support, alimony or property division, etc. — a judge will likely order you to complete mediation before going to trial. In mediation, both sides meet with a neutral third party in attempt to resolve disputes through negotiation.
Couples can and often do seek mediation on their own. Your legal counsel may or may not appear with you in mediation sessions, but generally it is a good idea if your attorney accompanies you to mediation. Mediation is often successful and results in an agreement that the parties themselves have crafted to avoid court room litigation and the emotional and financial stress of a continuing the contested litigation.
In arbitration, both parties and their divorce lawyers meet with a neutral third party who has authority to rule on contested issues and those rulings are binding. The parties present their arguments to an arbitrator as they would in court. The arbitrator — often a retired judge or attorney — considers both arguments and issues a ruling, which is then submitted to the court and approved. Arbitration allows the parties to reach resolution more quickly because they are not bound by the Court’s availability.
In collaborative litigation, both parties commit at the outset to resolving all issues without resorting to contested court hearings. The parties and their attorneys work through their differences in attempt to reach agreement. If the parties cannot reach agreement, they must retain new legal counsel and proceed through the contested litigation process. The thinking behind collaborative law is that all parties involved will be highly motivated to reach agreement and may be motivated to keep matters private — to the extent possible.
At Mackoy, Hernandez, Jones and Woods LLP cooperative litigation is our version of collaborative litigation without the requirement that the parties must seek new legal counsel if they cannot reach agreement. It eliminates the risk of spending a significant amount in legal fees and working through numerous issues, only to reach an impasse and have to start over with new counsel. In collaborative litigation, you can continue to use your current lawyer and litigate only the issue(s) you cannot resolve through negotiation.
Litigation May Be Necessary
Our attorneys are experienced and well versed in trying to find alternatives to litigation. However, it has also been our experience that litigation is unavoidable in some in some cases. If your case is one of those, our attorneys at Mackoy, Hernandez, Jones and Woods LLP will utilize their years of training and experience to help you navigate the twists and turns of litigation as smoothly as possible. The unfortunate reality is that many of our clients would not have to seek our services if they could reach agreements without them.
Here To Help You Resolve Your Divorce
Litigation can be costly, both financially and emotionally. If you have minor children, you and the other party probably will have to continue to work together following the litigation. Establishing a cooperative approach during the litigation can help set the stage for successful parenting in the future.