Getting divorced – Litigation or Mediation?- You have options.
Whether litigation or mediation or some other option is right for you depends on your situation and how you want to get divorced.
In the litigation process, you are filing a contested divorce. A contested divorce is one that you and your spouse have not agreed on the terms of your divorce for the Separation or Divorce Agreement. In the litigated or contested process, one party will make the initial filing in court, and the other party will be served with court papers. The party served has 20 days to file an answer. You might want to consider having an attorney help you with filing an answer if you are proceeding on your own.
You may have attorneys, or maybe one party has an attorney.
The parties will file motions in court. Motions are written requests of what you would like for temporary orders. The motion could be for support, parenting plan, child support or another matter.
If you have an attorney and if your spouse has an attorney, your attorney will serve notice to your spouse with a date and time to appear in court. The documents for the motion will have a date and time for you to appear in court. When you appear before the court on the day for your hearing, if you don’t agree on terms, the judge may send you to the family services office at the court to help you both arrive at a decision. If you still don’t agree, you will have to wait in court for the judge to hear the motion.
There is more to this process with objections that may be filed or crossed motions, but as you can see, this is time and money spent in court and on legal fees instead of your future. More importantly, you and your spouse can become quite agitated with one another.
As parents, if you have children, this can make it harder for your children to cope with the process.
The litigation process will continue with more days spent in court on motions until the parties reach an agreement or a trial is scheduled to solve all issues. The trial can be costly and go on for days depending on the complexity of your matter. Then there is trial preparation with documents to be submitted in evidence, trial books with costs quickly escalating to $40,000.00 or more.
Another option is mediation. In mediation, you will work together with a mediator as a team to discuss all the matters that will be listed in your Divorce or Separation Agreement. Some of the items that you will be considering could be alimony, child custody, child support, health insurance, the division of assets, debt and taxes to name a few, and in as much detail as the parties and the court may need. The mediator will review aspects of law as they pertain to each category and the parties will have time to ask questions and pose possible solutions and look for options if needed. In mediation you will not file documents with the court until you have resolved all matters that will go into your divorce/separation agreement.
The mediation process begins with all the parties to the mediation signing a mediation agreement. The mediation agreement protects the confidentiality of the process. A date and time are agreed upon to start the mediation process. The mediator may begin by talking about communication, listening and taking a break, if needed, during mediation. You may be asked to share your interests and goals for the mediation process.
The process may then move towards discussing any interim issues that you or your spouse may have and then move towards addressing matters that will be included in the divorce/separation agreement. The interim issues could include such matters as childcare, parenting or finances. You will meet with the mediator as many or as few times as needed to resolve all the issues for your agreement. Meeting with a mediator whose practice is dedicated to working outside of court in mediation and other non-litigated matters should be easy to schedule appointments. Mediators, most often do not appear in court. If you want more support, you can meet with an attorney during mediation, or to review your final agreement.
Once you have you both have agreed on the issues for the agreement the mediator, if an attorney, can draft a mediation agreement for you to review. After you have read and reread the agreement, you may meet to discuss any changes. There are other procedural documents, and your mediator can help you with those documents or you can complete on your own. Once all the documents are completed, you may meet with your mediator to discuss filing your documents in court and what happens during the court hearing. The court hearing is usually very brief, and your mediator can explain what to expect so you will be prepared.
These are two processes to consider if you have decided to divorce. There are other processes outside of court, such as the collaborative process, and negotiation that I will discuss in another blog.
Mediation saves time, saves money and preserves relationships. But, whatever you decide, investigate the processes and choose what is best for your family.
