Divorcing – how to avoid court proceedings

Divorcing is an intense and unpleasant process; it is not uncommon for one or more parties to let their emotions run away. After all, this is an intensely personal piece of litigation, and objectively, the best course of action is to resolve outside of court, which sometimes requires saving the clients from themselves.

Staying out of court

Driven partly by a shortage in available court time, there is now a greater call than ever to push for dissolving marriages via mitigation. So to have the case heard in court at all, proof must be submitted if there was a genuine attempt at litigation that was unsuccessful.

The proof boils down to what has actually been wanted by both parties, placing them into defined conditions such as the following points.

• Children Who will have custody and under what conditions? Will both parties retain custody as co-parents? What level of visitation will there be?
• Finances Who is responsible for financially supporting the children and up to what age? Who has access to savings? Will they be divided, and if so, in what ratio? What is the debt burden if personal finances are held in both names?
• Property Will the family home be sold and divided or continue to have its mortgage maintained? Who will live there? Who will pay the mortgage?
• Pensions If pensions are being drawn, will they be divided and shared?

This is just a small section of the practical but very real considerations you are going to have to go through in your mitigation. Aim to see it as an opportunity and avoid viewing it as a way to hurt or gain some sort of advantage over your ex-partner as this will be counterproductive.

Using a representative during mediation

One method of keeping the negotiations moving forwards whilst avoiding emotions is to use representative mediation. Both parties discuss their priorities with separate representatives, and the two representatives, professional and neutral, then meet to find a middle ground, satisfying as many of their clients’ priorities as possible. This also means that the individuals involved with the divorce never have to meet face to face.

Arbitration

Arbitration is used as a final step before considering mediation to be unsuccessful. A legal representative is nominated as arbitrator, and something akin to a court session is held by family solicitors Emsworth. The goal of this is to come to a speedy resolution of this type of pseudo-court session, permitting pleas to be heard from both sides. It has a fraction of the costs that genuinely having the case heard would incur and too often results in success.

Brief note on family proceedings with criminal charges

Unless it is deemed absolutely necessary, there is an emphasis on not mandating contact between victims and their perpetrators; testimonies can be pre-recorded and played in the stand or transmitted from a secure room. If one of the parties is charged with an offence against the other, mediation is considered unnecessary, and divorce proceedings in court are usually extremely straightforward and do not require the attendance of the victim.