Many divorce lawyers, as well as divorce mediators, did not agree with my suggestion in a recent blog post that a couple be allowed to obtain an uncontested divorce without court approval (Judicial “Approval” of Divorce). I was surprised by how many professionals expressed strong opinions about the need for the court system to approve a divorce.
Some concerns raised were:
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Power imbalances
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Domestic violence
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Welfare of the children
Most of the writers felt that judicial oversight would prevent someone from entering into a bad agreement that they would later regret.
But in the 1,000+ cases that I have filed on behalf of the couples I have worked with over the years, I have only had 2 instances where a judge expressed concern about the terms of the settlement. Yet, all of the other couples incurred thousands of dollars in costs to “approve” something that they both wanted.
It is also not just about money. There are some people who just want out of a bad marriage, while others do not feel it is fair to take something from a spouse that they do not feel they earned. So why should a judge tell them they can’t make what he/she thinks is a bad decision, if that is what they want to do.
Perhaps one of the most compelling comments came from an attorney in Italy, who opined that if couples did not want the courts involved in their lives, they shouldn’t get married in the first place, but should simply live together. I guess I can’t argue with that. But for those couples who do decide to formalize their relationship, why can’t they untie the knot without jumping through all the judicial hoops that the court system requires?
So, for all those divorce lawyers and mediators out there, how many cases have you had where a court has rejected the settlement of the parties?
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None. I have submitted hundreds of Judgments and none of them have been questioned by the Judge. I used to get Judgments back in 24 hours (ten years ago). Now it takes longer but as far as I can tell, the review process is for completeness and to ensure procedural rules are met.
I have, however, refused to draft an agreement and terminated mediation in one case in the last ten years. It became clear there was manipulation/intimidation occurring outside of mediation. My Agreement to Mediate is very clear that there must be a balanced exchange and if there is any over-reaching or if a Party is unable to make informed decisions, then mediation can not continue. Unfortunately, I have heard too many stories where a mediation party felt bullied or intimidated and the mediator did not intervene to correct the situation or end the mediation. This gives good, ethical mediators a bad name. But if mediators help parties get good information and ensure agreements are fully understood and have been entered into without any coercion or duress, then of course adults should be free to make their own choices without state interference. Unless they are going to ask for financial assistance from the state due to their agreement, I believe there is no basis for judicial intervention.
Why did hundreds of couples each incur thousands of dollars in costs to get a court to “approve” something that they both wanted? The Commonwealth of Virginia routinely incorporates the terms contained in mediated Property Settlement Agreements in Court Orders. Is that unusual?
Here people who are willing to file pro se and have a signed PSA can just pay filing fees (about $100) to get divorced. Those who prefer to have a lawyer prepare all the paperwork they have to file at court along with their PSA can get it done for $3,000.
In Texas if there is a mediated settlement agreement, the judge must enter – new cases in the last 12 mos have set that precedent. Before, if a judge felt the terms were unfair (usually as relating to a child’s visitation), the judge would not accept it. That is no longer a possibility. However, one party still has to appear before the judge and put on brief testimony and/or evidence to have the divorce granted. Because the order will be reviewed by a judge, the mediator knows that the judge will expect the agreed order to fall within the limits of the Texas Family Code. I think this is why judicial overview continues to be a good thing. The mediator must be knowledgeable about the family code. Then the mediator can advise the parties if they are straying outside the confines of the law. Attorneys are not required, the parties can do this pro se. However, as an attorney, I see at least one client every two months who is asking if I can change what is in the decree the parties did pro se (with or without a mediator) because the client has now heard from others that he/she was entitled to something more – or less. The client ends up spending more to “undo” what was done – if it is possible at all – than the client would have paid to have an attorney at least review the proposed agreed order to begin with. Family law is far more complicated today when there are children and property (retirement, etc) than it was 30 yrs ago.
Though I am not a divorce lawyer, my legal training informs me of rights and liabilities attached to marriages contracted under the ACT (Statutory marriage). Basic law would also teach that you cannot take the benefit of something and discard its burden. There are set procedures for marriage under the Act; ditto for separation or divorce under the same process. So, why will a party VOLUNTARILY subject themselves to fulfilling all the premarital processes and seek to avoid the post marital burdens of divorce proceedings.It certainly does not add up.
I like Gillian’s comment – as a mediator, I want to support the parties’ ability to work out a creative solution. I won’t support a process where someone feels pushed into a settlement, and I have heard the same horror stories about mediation – in particular from the mediators working with the county court (not the court custody mediators, but the attorneys and judges who are part of a program to assist settlements). As long as there is full disclosure of assets and the parties have an opportunity to discuss their options, I want to see the court support their choices. Our court is typically only checking for incompleteness, which is fine with me. But the turnaround is about 5 weeks these days.
Couples should be able to self-determine their outcome. Each must have the ability to bargain in their own self interest. I don’t think you need Judicial intervention or approval to divide assets in half. My latest mediation case was approved by the Court when they granted a divorce. They awarded custody of the children to a parent that never had provided care to the children and was dealing with addiction issues. The other parent had lousy representation so the Court never heard all the facts. The Court ruled based on the information presented. Is this the “approval” anyone needs?
I am not a divorce lawyer, but suggest that the requirement of judicial approval may constrain the parties from taking extreme and unreasonable positions in their negotiations. Perhaps if there was no such requirement, more of the settlements would not meet the current (apparently low) standards for getting such approval.