Much of the information available on this site tells you how a court will decide various issues associated with the separation and divorce process. As you can see, the laws can become quite complex when you apply them to your own situation. In many cases, there will be some factors that are in your favor and others that are in favor of your spouse. It can also be difficult to predict how the court will view some facts or circumstances.
Even with an experienced family law attorney, these complexities and uncertainties contribute to high attorney fees and litigation costs and no guarantee that the court will decide any specific issue in your favor. The in-court litigation process for a family law case involving alimony, child custody and support, and property division can easily exceed $10,000 in total costs and stretch on for several years. On top of that, it’s a rare case indeed when litigation facilitates good relations between the divorcing couple.
For all of these reasons, many people facing divorce choose to settle their differences out of court. A separation agreement and property settlement can take care of every issue that a court would normally have to decide in a divorce proceeding. The only role the court plays when the parties can settle all the issues is to approve the agreement and enter a decree for absolute divorce after the parties have been separated for a year. This process is vastly less expensive than an in-court divorce, takes less time, and usually does not stir up as much bad blood between the parties. Each party will not likely get everything he or she wants, but the hallmark of a good negotiated settlement is that neither side is 100% happy. Each side has to give ground in some areas to gain ground in others.
A property settlement can be entered into at any time before, during, or after the marriage and can only deal with the couple’s property, such as homes, cars, personal possessions, copyrights, businesses, retirement accounts, etc. It can be used to define rights in separate or marital property, such as who has the right to buy and sell what kinds of property. It can also be used to determine how property will be divided if the couples separate and/or divorce.
A separation agreement differs from a property settlement because it can contain any terms the parties agree to, as long as they are not against public policy. Common terms include agreements about child support, child custody, and alimony. Unlike a property settlement, a separation agreement can only be made when the parties have already separated or intend to separate immediately after signing the agreement.
Mediation
The process of trying to reach an agreement on the terms of a separation agreement and property settlement frequently includes mediation. At a mediation, each party is generally located in a separate room from the other, along with his attorney. A neutral third party, the mediator, will go back and forth between the two rooms with demands, concessions, and suggestions and try to work toward an agreement on the issues. The mediator is usually an attorney who knows the law and can give an outside perspective of what the situation looks like to a person who is not personally invested. The mediator can also offer an unbiased opinion that will be similar to what a judge might think if the case was taken to court. Mediation is a powerful tool for helping the parties reach a fair and just agreement on the issues.
Even when the parties want to reach an agreement between themselves on all the issues and to avoid court, it is always best to be represented by an attorney who can look out for your best interests and make sure that you don’t sign away your rights. A family law attorney will have a good idea of what a court would be likely to do in a given situation. The predicted in-court outcome should generally guide the parties through their negotiations.
Collaborative family law procedures are also a great option if you and your spouse want to settle your differences out of court.