Understanding Litigated Divorce
A “litigated” or “contested” divorce occurs when spouses can’t reach an agreement on key issues, such as child support, spousal support, and property division. In this situation, one spouse files a divorce complaint with the court, seeking the court’s intervention to settle the divorce.
By filing a divorce complaint, the filing spouse, known as the petitioner, requests that the court make the final decisions on the divorce and legally terminate the marriage. This involves following specific legal procedures and meeting deadlines.
A litigated divorce usually concludes after a trial overseen by a family court judge. While spouses can choose to represent themselves, many opt to hire lawyers for guidance, representation, and navigating the complexities of the court system.
While the option to settle is always available during a litigated divorce, most couples don’t reach a settlement until shortly before the trial. Due to court timelines and the limited number of family court judges, it is not uncommon for litigated divorces to take a year or more to finalize.
The Power of Divorce Mediation
Divorce mediation provides an alternative method known as “alternative dispute resolution” (ADR) for couples seeking to avoid lengthy and expensive court battles. Mediation typically occurs in a relaxed, non-confrontational setting, such as a mediator’s office or through online platforms. To start mediation, all you need to do is hire a mediator—no court filing is necessary.
Mediators do not have the authority to make decisions for the couple. Instead, their role is to facilitate compromise and assist in creating a marital settlement agreement. Once the couple reaches an agreement, they are well on their way to an uncontested divorce.
The duration of the mediation process varies depending on factors such as the number of topics to be addressed, the complexity of these issues (such as property division), time between sessions, and the level of cooperation between spouses. Mediation grants couples more control over the pace and scheduling compared to a litigated divorce.
During mediation, some spouses choose to have their own lawyers present, while others decide to represent themselves. Although mediators discourage the presence of lawyers to foster cooperation and reduce confrontational moments, spouses can consult with lawyers privately to ensure they make informed decisions.
Finalizing Divorce through Mediation
It’s important to note that a mediator cannot legally finalize your divorce—an official court order is required for that. After completing mediation and obtaining a marital settlement agreement, the court will review the agreement and issue the final divorce decree.
Submitting a marital settlement agreement to the court is a necessary step, regardless of whether you choose mediation or litigation. However, successful mediation typically leads to a faster resolution compared to a full-fledged litigated case.
The Cost Advantage of Divorce Mediation
Apart from court filing fees, litigated and mediated divorces both involve financial considerations. However, the expense of litigating a divorce is usually significantly higher than that of mediation.
In mediation, the primary cost is the mediator’s fee, which the couple typically splits. A typical private divorce mediation can cost anywhere from $3,000 to $8,000.
In a litigated divorce, attorney fees become the main expense, covering court appearances and legal work outside the courtroom. The longer the divorce drags on, the more work your lawyer must do, resulting in higher fees.
The major reason mediation is more cost-effective is because legal representation is not mandatory. While it’s possible to consult with an attorney during the process, their presence at every mediation session is unnecessary, saving you money. However, it’s advisable for each spouse to have their own attorney review the settlement agreement before signing it.
Without legal representation in a litigated divorce, navigating the complex court system can be overwhelming. Judges expect self-represented individuals to understand and comply with court rules, as well as make arguments based on established law. Mastering the intricacies of the law takes time, hence why people often hire attorneys for litigated divorces.
In mediation, additional costs may arise if you need professionals like appraisers or actuaries to assess property value or calculate pension plan amounts. However, these costs are likely unavoidable even in a litigated divorce. Working with these professionals in a litigated case, where their appearance in court or report writing is necessary, would only escalate expenses.
Is Divorce Mediation Right for You?
For couples seeking to minimize costs, mediation is a practical and financially viable option. However, success in mediation requires commitment from both spouses and a willingness to compromise. If either spouse is preparing for an all-out battle, mediation is less likely to be effective.
Mediation also works best when there is a fair balance of power between spouses. Cases involving ongoing domestic abuse are generally unsuitable for mediation—victims require the support of a professional advocate. Similarly, cases involving narcissistic spouses who refuse to admit fault often undermine the mediation process.
Furthermore, mediation is less viable when one spouse is dishonest. For instance, if a spouse is suspected of hiding assets, mediation becomes impractical. A meaningful settlement can only be reached when both parties are honest about all issues, including their assets.
If your spouse has already filed for divorce, claims you are at fault, or has legal representation, it may be in your best interest to hire an attorney.
On the other hand, even when you anticipate being unable to resolve all issues in mediation, it is still possible to reach agreements on some matters. This minimizes the topics that need to be litigated, saving time and money spent on court proceedings.
If you’re considering divorce, exploring the benefits of mediation is worth your while. With its cost-effectiveness, flexibility, and focus on cooperation, mediation offers a more amicable and efficient way to dissolve your marriage. For more information on divorce mediation, visit Garrity Traina.