Alternative Dispute Resolution and Divorce

The Ugly

There are many unflattering descriptions of the divorce process: “Knock down/drag out”, “scorched earth”, fight to the death”, “battle” and so on. Sadly, many divorces live up to these pejorative terms. Former partners fight for months or years.

Unlike most lawsuits which occur between strangers, divorces or custody battles involve intimate partners who were once in love and living together. Because the court has the authority to modify orders involving children, cases can remain open for years. After the legal proceedings are finally over, the parties will have to maintain some kind of relationship to raise their children.

The Bad

The standard legal protocol for contested divorce involves filing motions to resolve specific matters, doing “discovery” to gather documents and answers to questions, and hiring experts to evaluate custody arrangements, value real estate, businesses or other valuables assets, or to conduct the sale of property. A formal trial can last a few hours or many days. All in all, divorce can be extremely expensive and psychologically devastating.

The Good

Fortunately for everyone involved, there are many “kinder and gentler” options to choose from. Most New Mexico courts require parties to try settlement before they will grant a trial date. These options are loosely grouped under the title “Alternative Dispute Resolution” or ADR.

 

Major ADR options are:

Mediation: Parties work with a neutral third party to reach a resolution that the parties develop themselves. The mediator may ask questions, give “homework’, help parties make the decisions required to dissolve the relationship, and provide help evaluating the options they propose.

Settlement Facilitation: This is sometimes described as “mediation on steroids”: The settlement facilitator is more directive and involved than a mediator. Facilitators will offer (or promote) ideas for settlement and may push parties to reach an agreement.

Informal Settlement: Parties get together, and work things out between themselves, with or without attorneys.

Collaborative Law: Parties sign an agreement that if they are not successful in resolving the case, their lawyers will withdraw and they will start over. A team of experts (as needed) works with the parties in specialized areas such as finance, children’s needs, divorce coaching, and valuation of assets.

 

After Settlement: The parties can fill in forms available through the court or their attorneys can prepare the formal pleadings required for the divorce: The final decree, property settlement agreement, parenting plan, and orders required to divide pensions or tax-deferred accounts. The court will review and, usually, sign the decree granting the divorce.

When it comes to Alternative Dispute Resolution and divorce, there are many factors to consider. Whether you are ready to pursue action or want to better understand how these options may affect your situation, contact a family law attorney or call our office to meet with one of our family law attorneys today at 505-872-0505.