Print Posted by Court America LLC on 06/16/2017

How to Avoid Contested Lawsuits in Divorce and Keep Family Matters Private Through The Use of Alternative Dispute Resolution

How to Avoid Contested Lawsuits in Divorce and Keep Family Matters Private Through The Use of Alternative Dispute Resolution

When differences begin to arise in a marriage, there are many questions in the minds of the parties and fear of the unchartered territory of where their differences might take their lives and families in the future.  While, contested lawsuits are one way to resolve disputes, lawyers, and courtrooms may not always be the best option for dealing with private matters between couples and families. 

One alternative to a contested lawsuit is mediation. In general, mediation can be faster and less expensive and parties make their own decisions. Unlike a contested lawsuit, mediation is confidential.  Another alternative to a contested lawsuit is arbitration.  In arbitration, parties voluntarily give the power to an experienced professional to make decisions for them and their family that they are unable to make for themselves.

One of the most beneficial advantages to parties using alternative dispute resolution methods, such as mediation and arbitration, is that the parties do not have to hire lawyers.  Parties can represent themselves or hire any type of professional that best suits their case.  One party might want to hire a mental health professional to assist in the dispute resolution while another may want to hire a financial professional.  In a contested lawsuit, parties need lawyers to help navigate the law and the court system.

Mediation is becoming increasingly popular in divorce, child custody, parenting time, and decision making involving children.  In addition to saving time and money, mediation tends to increase compliance after the divorce is over, because both parties pledged at the beginning of the process to abide by a mutually agreed-upon resolution.  Many people believe mediation is a more fair and economical alternative to the busy and complicated civil justice system.

In a typical divorce case involving mediation, the parties will come together on an agreed upon date and location and meet with a mediator. The mediator will meet separately with each side, gathering data and facts about the issues between the parties and what it might take to resolve the issues. The mediator will either bring the parties together to share each other’s points of view or move back and forth between the parties to focus and clarify issues and discuss possible resolutions. Ideally, this process will lead to an agreement where each party has compromised to find a resolution and have finality.

Mediation differs from a contested lawsuit in that the parties, with the assistance of the mediator, reach their own agreement. The mediator will not make decisions for the parties. The parties will make decisions for themselves. In order to make decisions, the parties must be able to state clearly what they want and why.  Handling the divorce process through mediation does not mean that each side will “win” but it means that each side will leave the mediation having compromised and reached finality of a difficult time. 

In order for mediation to work and for issues to be resolved, parties must be willing to compromise.  Parties entering the divorce process may have difficulty in putting fault and blame aside. Trust may have been betrayed.  Promises may have been broken.  Children may be involved.  Years of hard work resulting in savings, investments, and retirement may be involved.  Fault and blame will not lead to a successful result.

If the parties are unable or unwilling to compromise, arbitration is the next best alternative to a contested lawsuit. Unlike mediation where the parties make the decisions, an arbitrator receives testimony and evidence from the parties and makes decisions as the tryer of the facts.  Just as a judge will make the decision in a contested lawsuit, an arbitrator will make the decision except the entire process is kept completely private. 

The court system in America was founded upon the principle of public courtrooms where any person is welcome to observe in a courtroom.  Whereas, arbitration hearings are held privately.  The parties choose who they want to use as an arbitrator, rather than a judge being assigned in a contested lawsuit.  This ability to choose can be advantageous to the parties.  Parties may want a person that has experienced some of the issues that are being dealt with in their case.  The testimony and evidence received by the arbitrator from the parties might be embarrassing or potentially damaging to a party’s career or reputation.  Arbitration provides a way to have a private trial for private matters.

What information is needed to successfully find resolution to divorce either by way of mediation or arbitration? 

  • Income -- current and previous income from each source, passive or otherwise – fringe benefits and bonuses – expense reimbursement – tax returns;
  • Expenses for each party and for the children;
  • Assets of the marital estate, including titling and how an asset might be held (e.g., vested vs. unvested options, limited partnership or limited liability corporation interests), where held (e.g., account name and number), and current gross/net value;
  • Liabilities of the marital estate, including individual guarantees, joint or individual, name of each creditor (e.g., account name and number);
  • The education and work history of each party;
  • Property.  Is there any pre-marital property, vested and unvested – what and when and how held from prior to marriage until now – fluctuations and contributions and management;
  • Has either party received any inheritance or gift– what and when and how held since received to the current time - fluctuations and contributions and management;
  • The The history of the children and the responsibilities of each party as it relates to the children, historically and currently;
  • Special needs of the parties or the children;
  • Post-divorce needs of the parties and/or the children;
  • Training or education necessary to restore either spouse to productive work; and,
  • Federal and state income tax consequences, if any, of post-divorce spousal support.

Court America provides confidential and private resolution of disputes through mediation and arbitration on matters between spouses, couples, parents, children, grandchildren, and families involving separation, divorce, child custody, child support, alimony, division of real estate and personal property, probate, guardianship and conservatorship, powers of attorney, trusts, and family business, for persons who represent themselves and for persons who have retained an attorney.

Court America offers individuals the opportunity to maintain control over their personal life and the process to discreetly resolve divorce, financial disputes, child custody disputes, health care and life decisions of a parent, and other family matters outside the glare of the public courtroom using mediation or arbitration.                                                                                                                                                                                                © 2017 Court America, LLC


C. Nicole Roth Rogers is the Operating Manager of Court America. Nicole is a Certified Arbitrator and Certified Mediator with the State of Georgia’s Office of Dispute Resolution.  Court America was founded in 2016 by Nicole Rogers and Judge Tom Cauthorn.  Judge Tom Cauthorn is an experienced trial lawyer and judge, and has participated in hundreds of jury and non-jury trials in his more than 40 years practicing law. Judge Cauthorn was admitted to the State Bar of Georgia in 1972 and is the founder of Cauthorn Nohr & Owen.

Nicole is a Certified Divorce Financial Analyst and holds a Bachelor of Business Administration in Accounting degree from Kennesaw State University. She has over twenty years’ experience working in the legal field.  In 2007, Nicole began working with Judge Tom Cauthorn. While working at Cauthorn Nohr & Owen, she gained courtroom experience, both bench and jury trial, primarily in the areas of family law and probate law. In 2016, Nicole decided to use her accounting education and legal experience to create The Rogers Firm, LLC where she provides probate accounting, forensic accounting, divorce financial services, litigation support, and general accounting services to individuals and attorneys.

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