Collaborative divorce can offer numerous advantages over the traditional, more confrontational model. As a result, the collaborative path to divorce has been gaining significant ground among spouses seeking to devise practical, cost-effective solutions for pursuing separate directions in their future lives. For spouses who are anticipating an uncontested divorce as the outcome of their collaborative process, the possible implications for divorce appeals may be a factor to consider as they review all their options. You can seek assistance with identifying those options and evaluating how they may apply to your situation by contacting King Law Offices at 888-748-KING to schedule a meeting with a member of our experienced South Carolina divorce team.
Legal Significance of Divorce
The individuals going through a divorce understandably tend to think of it in terms of personal and emotional impact. To the courts, however, a divorce is a matter of redistributing formerly shared property, which now needs to be assigned to a new, individual, legal owner – and, for couples who have children, of determining an appropriate arrangement for the care of those children. Consequently every divorce, no matter how amicable, must decide, at minimum, the issue of property division and establish whether the couple has any children together and, if so, how the responsibility for those children will be shared between the parents once they are no longer married.
A divorce is considered contested if the parties bring all their issues to a South Carolina Family Court and leave them to be decided by the judge to whom their case is assigned. An uncontested divorce in South Carolina is one in which the parties reach an independent agreement, outside of court, on all of the critical matters that a divorce in the state is legally required to resolve. The couple in an uncontested divorce can then submit a document detailing their agreed-upon terms for the court’s approval; otherwise, each spouse must express his or her preferences on each individual matter requiring a determination, and the judge may choose one party’s proposal over the other’s or devise an alternative solution.
What Is Collaborative Divorce?
Not all divorces are acrimonious affairs filled with vitriol. Sometimes people who still like and respect each other may come to the realization that it no longer makes sense for them to be married. The reasons underpinning this realization vary widely from one spousal relationship to the next, but partners who come to this understanding together and are in agreement that they should part ways, without bitterness or hostility, may find collaborative divorce an attractive option.
Working Together To Build an Agreement That All Parties Consider Fair
Not all uncontested divorces follow the collaborative process. Some agreements for uncontested divorce are reached independently, even by spouses whose fervent mutual dislike ensures that they are ready to compromise just to be rid of each other as quickly as possible. Other divorces that may have been headed toward a protracted court battle are sometimes detoured during court-ordered mediation that manages to resolve the disputed matters.
However, collaborative divorces are in an especially strong position to become uncontested, because the spirit of cooperation that the collaborative approach emphasizes tends to facilitate a problem-solving orientation towards the conversations over key areas of concern. Even when the two parties disagree about the most appropriate course of action, the collaborative process often makes it feasible for them to find common ground and work together to establish a compromise solution that both agree is practical and fair.
Differences Between Collaborative Divorce and Divorce Mediation
Mediation is a structured method of alternative dispute resolution (ADR) very commonly used in family cases. In divorce mediation, a neutral third party listens to each side to get an understanding of their individual perspectives and priorities, and then proceeds to foster a discussion aimed at helping the spouses find common ground so that they can reach an agreement on some or all of the issues to be resolved in their divorce.
Collaborative divorce does not typically involve the services of a neutral third party, although spouses may certainly seek to connect with an expert mediator if they believe the mediation process might help them to better articulate their goals and areas for compromise. Often in a collaborative divorce the parties are already communicating well and willing to participate in the process of seeking a fair and workable resolution for each issue that must be addressed in the document they hope to present to a South Carolina Family Court. In that case, they may choose not to pursue mediation – but it is still very common for each spouse to retain his or her own attorney to act as a supportive guide throughout the South Carolina divorce process. An attorney’s advice and perspective may be especially helpful in identifying potentially unintended long-term legal ramifications of one or more of the terms the spouses are considering for inclusion as they draft their divorce agreement.
Collaborative vs. Amicable Divorce
Divorcing spouses may sometimes wonder what is the difference between collaborative vs. amicable divorce, or even whether there is any difference between collaborative vs. amicable divorce at all. The main difference lies in the fact that collaborative divorce is a term used for a specific, structured approach that aims to follow a set of principles based on mutual respect and cooperation, and frequently attorneys and other professionals who offer services related to collaborative divorce engage in trainings or other forms of professional development oriented toward cultivating skills useful in enhancing the effectiveness of collaborative divorce techniques. Amicable divorce, on the other hand, is a term with more general applicability, and may be used to describe any divorce in which the spouses are parting ways with friendliness instead of animosity.
The overwhelming majority of spouses adopting the collaborative approach to divorce do indeed share an amicable relationship, but there can also be strong reasons why even spouses who are not divorcing as “close friends” may still want to consider the potential advantages of approaching their divorce in a non-confrontational manner, with a view toward finding practical solutions to shared problems. Conversely, numerous “amicable” divorces go through the traditional process each year. A family law attorney from King Law Offices experienced in collaborative divorce may be able to help you determine whether the collaborative approach makes sense in your situation.
Collaborative Divorce and South Carolina Law
South Carolina’s requirements for a legal divorce, laid out in § 20-3-10 of the Code of South Carolina, only allow couples to pursue a dissolution of their marriage without alleging “fault” (wrongdoing by one of the spouses) if they have been living separately for at least a year. For obvious reasons, collaborative divorce tends to be a less common preference among spouses who file for divorce in South Carolina on fault-based grounds, alleging misconduct by their partners, and so couples who wish to consider collaborative divorce are likely to have several months between the realization that their marriage is no longer working and the court filings that initiate the legal divorce process.
The delay can sometimes feel frustrating, even to spouses who are divorcing on very friendly terms. However, the good news is that the year of living separately can, with a little planning, give both parties the time and space to think through possible solutions to each of the matters to be decided in their divorce, and even in some instances to “try out” the practicality of particular arrangements, such as the disposition of formerly shared vehicles and the optimum schedule for sharing parental responsibilities.
Relationship Between Collaborative Divorce and Divorce Appeals?
A divorce appeal is a legal proceeding in which one party to a divorce asks a higher court to review some aspect of the judge’s decision in the original court order granting the divorce. Generally speaking, a successful divorce appeal will require the appellant to show that the judge made an error of some kind in devising the original order, such as by misapplying the law or abusing the court’s discretion.
Appealing Court Orders vs. Uncontested Agreements
Appeals are typically considered “difficult” cases because higher courts generally treat the orders of lower courts with what is known as judicial “deference,” meaning that the court reviewing the original order will operate on the presumption that the judge’s decisions were fair, appropriate, and within the scope of their authority. This presumption places the burden of proof for showing error on the appellant, in any appeal. An argument that one or more of the terms of a divorce order should be changed due to judicial error can be exceptionally difficult to make in an uncontested divorce, given that the terms of that order are typically those that the spouses themselves set out in an agreement submitted by consensus for the court’s approval.
Challenges in Appealing an Uncontested Divorce
Collaborative divorces, generally speaking, are filed as uncontested because the spouses have worked together and developed a settlement they both consider fair. This outcome is one of the primary practical advantages of collaborative divorce, but it also does mean that collaborative divorces tend to result in final decisions that leave comparatively little “room” for making a strong case on appeal. An option that spouses who find themselves dissatisfied with the results they are experiencing after a collaborative divorce may wish to consider the possibility of filing a request for modification, rather than an appeal.
Differences Between Divorce Appeals and Modifications
Unlike an appeal, a divorce modification does not assert an error on the part of the judge issuing the original order granting the divorce. A divorce modification is also not bound by the same limited timeframe for filing as a divorce appeal. Generally speaking, requests for modification are instead based on a significant change in the situation of one or both parties, or a change in the circumstances of their children (such as the development of a new serious illness).
Because the request for a modification does not need to prove that the original order was in error, just that its terms are no longer working (and that a proposed change would resolve the problems one or both parties may be experiencing), a modification of orders can often be easier to obtain than a reversal of an original divorce order. A request for modification can also be drafted collaboratively and submitted by consensus, similar to the original agreement parties typically hope to submit as the culmination of their work together in a collaborative divorce; S.C. § 63-15-518 particularly specifies that a child custody agreement may be modified by agreement between the coparents.
Speak With an Experienced South Carolina Attorney Regarding Collaborative Divorce
Choosing the collaborative path to divorce opens up avenues for finding common ground and working together to develop practical solutions that work for you and your family. While collaborative divorce may not be the ideal option in all circumstances, at King Law Offices we are passionate about the benefits of collaborative divorce for spouses who are prepared to cooperate with each other as they seek to part ways in a manner that honors their shared history and present values. While divorce appeals following the collaborative process are rare, South Carolina law does make allowances for the possibility that any agreement reached between the spouses may need to be updated if either party’s circumstances change. To learn more and discuss the particulars of your situation, call our office at 888-748-KING to schedule a personalized consultation.