Should You Litigate, Mediate or Collaborate in Your Divorce?

If you’re thinking about getting a divorce or your spouse has told you that he or she wants a divorce, this can be without a doubt one of the most difficult times in your life.

It can feel like a rug has suddenly been pulled out from under your feet.  At the same time, it can feel overwhelming and scary if you don’t know where to look for answers to the steady stream of questions that you understandably experience.

Fortunately, you do have the ability to choose the divorce process that is right for you.  In making this important decision, however, you should be guided by the thorough advice and in consideration with your trusted attorney.

Below is a brief summary of each divorce process and the pros and cons of each.

1.       Mediation.  This is a cooperative divorce process that involves both spouses and a neutral facilitator called a mediator.  If the parties are able to reach an agreement, the mediator typically prepares a Memorandum of Understanding.  Typically your attorney will incorporate this document into what is called the Marital Settlement Agreement so that your agreement can become legally binding.

Pros:

  • Mediation typically costs less than litigation.
  • Both spouses generally work together out of court to reach their own resolutions rather than having a court decide the legal issues.

Cons:

  • There is the potential that one spouse may try to dominate the other.
  • There is no compelling of financial disclosure between spouses.
  • Often lawyers have not yet been retained to advise the spouses on the law during process.

2.       Collaborative Divorce.  This divorce process can be described as “enhanced mediation.”  Collaborative divorce is similar to mediation except that each spouse has his or her own attorney and a team approach is used.

Pros:

  • The spouses typically control the outcome.
  • A divorce coach can be added to the collaborative divorce team to help guide the spouses to manage their emotions and communicate effectively.
  • Legal fees are generally lower than those incurred in litigation.

Cons:

  • If the spouses are unable to reach an agreement and the collaborative divorce process fails, both attorneys must withdraw and each spouse must obtain a new attorney.

3.       Litigation.  The divorce litigation process is initiated when a Divorce Complaint is filed with the court and the opposing spouse typically files an Answer in response.

Pros:

  • Where one party is concerned the other is creating marital debt, the Divorce Complaint generally ends the marriage for setting and valuing assets and debts.
  • The parties can file motions with the court for temporary financial support or custody arrangements and obtain a binding order.
  • If necessary, the court can compel financial disclosure.

Cons:

  • The parties are generally on the court’s time schedule, not their own.
  • The divorce litigation process is generally more costly and longer lasting than the two divorce processes above.

In addition to the above, arbitration is a less commonly used divorce process where the parties agree that a neutral third party, called an arbitrator, will make a binding determination on the legal issues.

Keep in mind that in obtaining a divorce, any of the above – or a combination – can be used.  Also, even where litigation is used to obtain a divorce, each spouse’s attorney might engage in a series of negotiations to obtain a mutually agreeable result without the court having to ultimately decide the issues.

Overall, you and your attorney should remain flexible throughout the divorce process and it is essential that you trust your attorney to guide you in the right direction.

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