Is There An Alternative To Divorce?

Is There An Alternative To Divorce?

If you want to save your marriage and avoid divorce, the alternatives are:

  1. Trial separation
  2. Legal separation

If you don’t want to save your marriage, and want to separate without going through the regular divorce-related court procedures, the alternatives are:

  1. Annulment
  2. Mediation
  3. Collaborative divorce

OPTION 1: Alternatives To Divorce If You Want To Save Your Marriage

1. Trial Separation

Some unhappy couples may want to give each other some breathing space and then reunite after a fixed period to check if the distance helped them think through and resolve their marital problems (emotional, financial, physical). Such couples mutually agree to separate physically (a partner moves to another home) without filing for divorce or without obtaining a legal order. When couples do not make such a separation legally binding, it is termed as trial separation.

In trial separation, the marriage does not break and the income earned, property purchased, and the debts incurred during the trial separation are regarded as marital property/debts. These are subject to distribution on divorce according to the laws of the state.

Typically, their family law attorneys draw up the trial separation agreement that spells out how alimony and child support will be paid, how parenting time will be shared, and more, depending on the circumstances of the case.

2. Legal Separation

Legal separation works just like trial separation – the only difference is that it is made legally binding by obtaining a court order. The order may specify how income earned, property purchased, and debts obtained during the legal separation will be treated if the couple decides to divorce after the legal separation. The income, assets, and liabilities accumulated during the legal separation may or may not be considered marital property.

That said, note that all states do not allow legal separation – so, check with your divorce lawyer before going about one.

Note that both trial and legal separation work for couples who are mature, believe in effective communication, and are friendly with each other.

OPTION 2: Alternatives To Divorce If You Don’t Want To Save Your Marriage

1. Annulment

Spouses typically file for annulment if their marriage was legally invalid – that is, they want to get the courts to pass an order that invalidates or cancels their marriage. Usually, either spouse can file for annulment because of any of the following reasons (note: state laws may differ):

  • They were cheated or forced into marriage
  • They were tricked into marriage by the other spouse
  • They were mentally incapacitated to make a decision to marry (examples: mentally unstable, addicted to drugs)
  • They were already married
  • They had engaged in incest 
  • They had not reached the legal marriageable age

Post annulment, the legal status of the spouses is restored to “single.” Obtaining an annulment is as expensive as obtaining an at-fault divorce, and sometimes more expensive.

2. Mediation

Mediation is an ADR (Alternative Dispute Resolution) procedure, and it may be mandated by your state if your divorce is contested.

Mediation is a negotiation that is held in good faith and in an informal environment, in which both spouses are helped by a mediator (a neutral and objective legal professional) to discuss their marital situation, negotiate a settlement (child custody, property distribution, alimony, child support), and complete the divorce. The spouses are not under any obligation to hire an attorney.

The mediator does not pass judgment – he merely facilitates communication and helps negotiate a settlement while safeguarding the rights of both spouses. Mediation is a confidential and friendly process and costs much less than a divorce.

3. Collaborative Divorce

A collaborative divorce also takes place in an informal and casual setting, almost like mediation. The difference is that the spouses need to hire an attorney and work towards an out-of-court settlement. Expert witnesses such as financial, medical, and medical health professionals may be requisitioned in a collaborative divorce.

A collaborative divorce costs more than mediation but less than litigation.

Published On: September 13th, 2022Categories: MarriageComments Off on Is There An Alternative To Divorce?
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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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