No, your divorce doesn't have to go to court

Innovation concerns itself with what's next, what's better ... The story has it that Steve Jobs looked at his old cell phone and asked if there was a better way. Indeed there was and the iPhone has forever changed the way we communicate and interact with technology.

It's much the same in litigating a divorce - at least in terms of the status quo. 

It can be:

  • Time-consuming. If you're looking for a quick way out, this is not it.
  • Expensive. Time is money, especially with legal fees.
  • Anger-inducing. You and your ex are in a button-pushing contest where there are no real winners.
  • Unproductive. You may realize - after much time, money and emotional pain - that the litigation isn't really getting you anywhere good.

Are there better alternatives to litigation?

Yes, there certainly are. Several, in fact.

What are the alternatives?

There are many methods of solving divorce and child custody disputes, such as mediation, the Hawai'i Family Court's Volunteer Settlement Master program, collaborative divorce, and arbitration (a.k.a. rent-a-private-judge). Through these methods spouses and parents often can avoid a bitter and expensive courtroom fight and instead negotiate outside of court to reach a divorce agreement or child custody agreement that everyone can live with. These methods help clients develop more satisfying and longer-lasting arrangements than the outcome from a Family Court judge's decision.

Divorce Mediation

In mediation, both parties meet with an impartial and neutral mediator who is trained to facilitate the divorce process, keep the communication open, offer ideas, and help the parties arrive at an agreement that they both can live with.

There are different types of mediation. In facilitative mediation the mediator is not required to know the nuances of the subject matter (for example, child custody or property division). Instead, the focus of the process is on identifying and encouraging the parties to find a point of agreement. This type of mediation works best for parties who are able to work together, have fairly equal bargaining power, and are willing to compromise from what they really want.

In evaluative mediation the mediator has specific knowledge and experience in family law and will evaluate the strengths and weaknesses of a party's position. That evaluation will be used to encourage parties to compromise. Evaluative mediation often is more expensive, since the parties are paying for the family law expertise of the mediator, but equally often is very productive.

Volunteer Settlement Master Program

The Family Court on O'ahu has a unique program known as the Volunteer Settlement Master (VSM) program. The VSM program is free and requires (a) an agreement of the parties to participate, and (b) the Court's appointment of a VSM. VSMs are experienced family law attorneys who volunteer for up to (and often over) three hours to provide a neutral view of each party's position. The purpose of the VSM program is to use an experienced, neutral perspective to influence the parties to compromise.

Collaborative Divorce

Like divorce mediation, collaborative divorce is designed to resolve the divorce out of court. Both spouses must agree to the process, which uses a team approach to aid with decision making. The teams may use family or child specialists, financial specialists, attorneys specializing in this collaborative process and others as needed.

In Hawai'i, once the parties agree to the collaborative divorce process, the formal information-gathering rules are suspended because each spouse must voluntarily share information. The participants in collaborative divorce do not give up their right to go to court. However, when a spouse goes to court then both spouses lose their collaborative divorce lawyers and new lawyers must be found (or a spouse goes to court without a lawyer).

Arbitration

Arbitration allows spouses to have a less formal hearing than traditional litigation. The result of an arbitration under Hawai'i's Uniform Family Law Arbitration Act is binding. In other words, everyone will be bound by the arbitration award as though it were an order from a judge from the Family Court, unless that Court does not confirm the award (and non-confirmation is rare). Arbitration offers a faster and less expensive resolution than trying to get in front of a Family Court judge, which can take weeks (if you want a temporary resolution) or months (if you want a divorce).

Arbitrators are mutually selected by the parties and must be trained in domestic abuse and child abuse, and must be lawyers or retired judges. Participants should select a person who has specific knowledge and experience in family law. Like most evaluative mediators, most arbitrators charge a fee for their services.

During the arbitration hearing each spouse is able to present evidence and testimony. The rules for that process, and the amount of time provided to each spouse, are more relaxed than in a Family Court proceeding. When the spouses conclude their presentation of evidence, they will get a result from the arbitrator(s) that can only be changed or "cancelled" by a Family Court judge, which is not often.

The process of divorce can be emotionally charged, as well as expensive, stressful and complicated. Finding an alternative to resolving your disputes that keeps you out of the courtroom has real benefits, especially for spouses with children. There is a better way, after all.

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