Divorce is often a tumultuous affair involving the dividing of possessions and custody of children, not to mention the emotional baggage that accompanies the end of a relationship. The last thing a couple wants to encounter is expensive legal fees and lengthy court battles. Is divorce possible without going through the court? The answer hinges on understanding legal issues surrounding marriage and divorce, especially regarding your state of residency.
The Institution of Marriage
The first step in understanding divorce is to comprehend the institution of marriage. Although marriage often involves a ceremony filled with religious content, it is also a legal agreement---signed, witnessed and filed with the local court. As with any legal contract, the parties must be free to enter the contract (unmarried) and willing to do so, and they actually must complete the contract (get married). The legal document (marriage license), when properly executed, allows the couple to enjoy the various legal benefits of living as spouses, such as shared property.
Canceling the Contract
When a contract is breached or no longer desired, there are remedies to void it. In the ordinary contractual world, both parties can simply issue a document canceling the contract, often without court participation. Ending a marital contract isn't quite that simple. Marriages are more serious and complicated than, say, a lawn mowing contract, and courts want the parties to take more time and thought before canceling the agreement. Even when a couple is in agreement, someone must initiate the proceedings by filing for divorce. In essence, this person is actually suing the other party for something---a dissolution of their marriage contract.
The Legal Process
Can a couple in agreement simply divorce without involving the court? As long as the marriage was legal, the court must be involved in the divorce. After all, the legal documents were filed with the court and there is a process to void them. Some states will allow self-representation in certain circumstances, eliminating the need for legal counsel. However, clerks and other court employees must remain impartial and cannot help parties with their paperwork.
Indiana, for example, allows childless couples who agree on terms to complete the necessary forms themselves, file them with the clerk, and waive a formal hearing. In addition, there are online legal forums that complete forms for a fee.
Another strategy is mediation. Mediators sit down with both parties, help them reach an agreement and complete the divorce without a hearing. This option is a cost savings when compared to each party hiring separate attorneys and appearing in court.
Unlike a divorce, which seeks to end a legal agreement, an annulment proclaims the legal marriage never existed and, therefore, neither did the agreement. Annulment is steeped in religious history with Catholic roots in countries where religion played a primary role in government. In modern times, annulment is usually sought when religion prohibits divorce. To qualify for an annulment, one party must prove the marriage was entered into illegally, while incapacitated or threatened, or that the marriage was the result of fraud.