One problem inherent in family law issues is that not all states do things exactly the same way. Your friend in California might have one experience with the process while the procedure you experience in New Jersey is completely different. This is the case when it comes to settling your divorce issues so you can avoid a trial. In many jurisdictions, it is mandatory to attempt to settle issues with your spouse before trial; this can be accomplished in different ways.
If you and your spouse can reach an agreement on your own, a settlement conference isn’t necessary. All states have some version of uncontested divorce, the common theme being that after you reach an agreement and draft it into a written document, you can submit it to the court for approval. If the judge signs off on it – which is usually the case unless it’s unconscionable to one of you or your children – you can be divorced relatively quickly unless your state has a waiting period. In some states, such as Ohio, this is called a dissolution of your marriage, not a divorce. By any name, both parties have the right to reach an agreement on all issues, including property and debt division, custody and support.
If your divorce begins as contested – you and your spouse can’t reach an agreement on one or more issues – the court may schedule a settlement conference. In many states, they’re mandatory and provided for by statute. A conference sometimes involves meeting with the judge assigned to your case, but in some states – such as California and New Jersey, spouses meet with a panel of experienced family law attorneys instead. The judge or the attorneys listen to the facts of your case and make recommendations for settlement. If you meet with attorneys, they can’t issue rulings but they can tell you what they think the court is likely to order if you go to trial. Armed with this information, you can make a decision – accept the recommendation as is, tweak it by agreement so it suits your family a little better, or reject it. Meetings are typically held in a conference room at the courthouse, and you don’t have to testify under oath.
Some states require that you attend mediation either in addition to a settlement conference or if you fail to reach an agreement at the conference. Mediation is similar in some ways to a settlement conference. The mediator is a neutral professional who can’t make orders, but also can’t make suggestions for settlement either. He can point out things either you or your spouse may have failed to consider and suggest ways for you to reach a compromise, effectively guiding the meeting – or a series of meetings – to a resolution. If you reach an agreement, the mediator might put it in written form for you or you can hire an attorney to do so or even do it yourself. Just as with an uncontested divorce, when you submit the agreement to the court for a judge’s approval, the terms are incorporated into a decree or judgment. It’s binding on both you and your spouse when you and the judge sign it.
You Don’t Have to Settle
Although attending mediation and settlement conferences is a mandatory part of divorce in many jurisdictions, reaching an agreement is not required. You always have the right to elect to go to trial instead – no one can force you to agree to terms you’re not comfortable with. Avoid forcing a trial just because you’re angry, however. If you and your ex are even remotely close to a deal, it might be worth it for each of you to speak with an attorney of your own choosing. An attorney is your advocate – he’s on your side and wants to see you get the best terms possible. He can tell you if it’s worth fighting things out in court or if the deal your spouse is offering is actually pretty good. In some states, you can take an attorney with you to the settlement conference to expedite the process.
- Helene L. Taylor, Esquire: Using a Settlement Conference for Success in Your Divorce
- New Jersey Courts: Matrimonial Early Settlement Program (MESP)
- Nolo: Divorce Mediation Basics
- Ohio Legal Services: Family Law – Legal Separation, Divorce and Dissolution
- Oregon State Bar: Judicial Settlement Conferences
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