How to Avoid a California Divorce Trial
The worst part of a divorce is the trial. Trials are highly adversarial and emotionally draining. Trials require both parties to gather evidence, prepare witnesses, and hire experts. All of this is time consuming and expensive. No wonder that 95% of divorce cases never go to trial. If a couple wishes to avoid a trial, they have many options in California.
Do You Have a Prenuptial Agreement?
The simplest way to avoid a trial is to have a well-drafted prenuptial agreement. Before many couples get married, they sign a prenuptial agreement. The prenuptial agreement outlines how property will be divided in the case of a divorce. Prenuptial agreements let the couple decide these issues while they are on good terms. There are a few downsides of prenuptial agreements. A court will not enforce a prenuptial agreement that is not fair. Fairness is determined at the time of enforcement, not the time of signing. After several years, the original terms may no longer be fair. Another downside to a prenuptial agreement is that a prenuptial agreement cannot contain terms relating to child custody and child support. If the couple cannot settle the child support/custody issues on their own, they may still need to go to trial.
Consider Collaborative Divorce Options
Another way to avoid a trial is through a collaborative divorce. In a collaborative divorce, the couple negotiates a settlement agreement. The negotiation can be between the couple themselves or with the assistance of attorneys. Collaborative divorces work best when the couple is on amicable terms, but the couple does not need to be on the friendliest of terms. They just need to be reasonable and willing to listen to legal advice. If the couple is able to come to an agreement, either the couple themselves or one of their attorneys drafts a marital settlement agreement. Both spouses need to sign and notarize the agreement and submit it to the court. If the agreement is fair and consistent with California laws, a judge will approve the settlement and the divorce will be final.
There are some situations where collaborative divorces will not work. If one spouse is hiding assets, if one spouse is a narcissist, or if there is a history of domestic violence, then the case will need to go to trial.
If the couple cannot come to an agreement through negotiation, but still wants to avoid a trial, they can try mediation or arbitration. In mediation, a family law expert will act as a neutral party and work with the couple to come to an agreement. Mediation is less adversarial than a trial. Mediation is expensive, but it is much cheaper than a divorce trial. There are a few drawbacks to mediation. The goal of mediation is to come to an agreement- any agreement. Mediation is not binding, so either spouse can reject it. If the settlement is rejected, the couple has wasted time and money. Arbitration is similar to mediation, but the agreement will be binding.
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