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Taking divorce out of the courtroom?

A recent opinion piece by a Hennepin County district court judge in the Minneapolis Star Tribune discussed the Minnesota family law system, claiming that the current court process is too adversarial and not focused enough on the best interests of the children. "We may have to accept that there is no good solution within the current system of family law," the judge said.

The judge made some good points. First, those that favor joint custody (and supported legislation earlier this year to require a presumption of joint custody) would like to ensure that fathers receive equal treatment by the court system. Yet, how do we know that equal time with both parents is in the best interests of the children?

Second, the family court system goes beyond simply being adversarial. Rather, the judge claims, it is a coercion system, since many parents try to get the courts to do something the other party does not want to do. This "coercion system" leads to greater conflict, which in turn can hurt children.

The judge recommends taking divorce out of the legal system - a somewhat radical proposal, especially when some people need the system in order to reach a fair solution. This is especially true for divorces involving domestic violence or any divorce where parties have unequal footing.

What, then, can parties do to take the courtroom out of their divorce and reach an agreement that meets each party's needs?

Currently, there are a few options in place that fall under the "alternative dispute resolution" umbrella. They include:

  • Collaborative law: Through collaborative law, parties work with multiple professionals and with each other to address various issues in the divorce. Generally, collaborative law is non-adversarial. The goal is to reach a settlement that benefits both parties as well as any children involved and that addresses how the parties will work together in the future.
  • Mediation: In mediation, the parties and their attorneys work with a third party neutral (the mediator) to reach a mutually beneficial agreement. Unlike collaborative law, the parties can have separate attorneys who advocate on their behalf. The parties may either meet with the mediator together or separately, but the mediator's job is ultimately to find common ground for the parties.

To learn more about divorce in Minnesota, visit our pages on Minnesota family law.

Source: Star Tribune, "Time, perhaps, to get courts out of divorce," Bruce Peterson, July 12, 2012


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