If you and your spouse are contemplating a divorce, you probably know separation can be a financial burden. Separating one household into two adds substantial expenses to the same income pool. Adding legal expenses on top of increased childcare expenses and/or an additional rent/mortgage payment can make the prospect of separation a full-on financial crisis. For this reason, both you and your spouse have an interest in keeping legal costs down. Most people believe a trial must take place in order to resolve the issues surrounding separation but that is the most expensive avenue. Luckily, there are alternatives to litigation available to separating spouses. These alternatives can help keep costs down if both spouses are willing to work together to reach an agreement.
An added benefit of reaching an agreement outside of court is the amount of power and control you each have over the arrangement. The two of you have much more control over the outcome if you reach an agreement than you do if you litigate the matter in a trial. Once you bring a matter to trial, the judge, not you, has complete control over the outcome. Additionally, once an order is entered, it will have to be obeyed whether you like the outcome or not.
Below is a list of options to reach a resolution in order from least expensive with the most control over the outcome to most expensive with the least control over the outcome:
Independent Agreement: In an independent agreement, you and your spouse decide among yourselves how you would: 1) like to separate your assets; 2) what, if any, amount of spousal and child support will be paid, to whom and for how long; and 3) the appropriate custody arrangement.
Have legal counsel review the terms and draft the appropriate documentation. The appropriate documents could include a separation agreement, parenting agreement and/or consent court order, it really depends on what works best for your case. An attorney can advise you on this issue.
Note: A North Carolina attorney can only represent and advise one spouse, not both. If both spouses want to have the terms reviewed, both spouses should have separate counsel.
Hired Negotiations: With hired negotiations, you and your spouse both hire attorneys to negotiate an agreement on all issues. This option is helpful when there is acrimony between you and your spouse but your situation is not extremely contentious. If the two of you are unable to agree on everything yourselves, your attorneys can negotiate the terms on your behalf. However, each attorney will bill for for the amount of time it takes to reach a resolution.
Mediation: Sometimes attorneys will suggest attending mediation in order to avoid litigation. The point of mediation is to reach a resolution though reaching an agreement is not required. Hiring a mediator to spend a day (or more) facilitating an agreement can be expensive but can also be worth it if a settlement is reached.
Collaborative Divorce: With collaborative divorce, couples agree to participate in the process and not participate in litigation. There are pros and cons to the process and costs will vary. At the beginning, each spouse signs an agreement with their attorney that states if the process does not work, their current attorney will not be able to file claims and represent them in court. The biggest upside to this is it forces spouses to have an interest in making it work. If it does not, each spouse will be forced to find and hire a different attorney.
Litigation: Finally, with litigation, you and your spouse hire attorneys who litigate one or more issues in court. The good news here is that, simply filing litigation does not mean you cannot participate in negotiations pending the court hearing. Your attorney could file the necessary paperwork to begin the litigation process but you and your spouse could end up settling through your own negotiations, through attorney negotiations or through mediation before the matter ever comes before a Judge.
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