Navigating Divorce: A Look at Different Options

Divorce is a complex legal process, and navigating the various options can feel overwhelming. Below are the key differences between four approaches: traditional litigation, collaborative divorce, mediation, and uncontested divorce.

Traditional Litigation:

This is the most adversarial approach. Each spouse hires an attorney who advocate for their client’s individual interests. A case is filed and matter is assigned to a Judge.  Litigation can be expensive, time-consuming, and emotionally draining due to its adversarial nature.  Court rules and processes will need to followed and complied with such as court appearances, discovery process (i.e. subpoenas, production of documents, depositions, etc.) and temporary hearings.  If the parties are not able to settle the case on their own the case goes before a judge who makes the final decisions on issues like property division and child custody/parenting time.  The majority of litigation cases do not end in a trial, but often are settled with the help of the judge making recommendations.  

Collaborative Divorce:

Here, both spouses sign an legally binding agreement to work collaboratively with specially trained attorneys who are disqualified from representing them in court if the collaborative process fails. Other professionals like financial neutrals and neutral child specialists can be involved to aid the process with their professional expertise. The focus in a collaborative case is on open communication, free exchange of financial information, problem-solving, and striving to make mutually beneficial agreements. While still involving lawyers, collaborative divorce aims to be less combative and more cost-effective than litigation since it does not involve court appearances or compliance with court rules.  However, a case is still filed with the court to effectuate a divorce if the parties settle all their issues in the process.  The parties are free to do litigation above the collaborative process is not successful. 

Mediation:

A neutral third-party, the mediator, facilitates communication and negotiation between the spouses to reach an agreement.  The mediator guides discussions, but doesn’t have decision-making power.  Not all divorce mediators are lawyers and even the ones that are lawyers cannot or should not provide legal advice when they are acting as a mediator. Mediation can be a good option for couples who can communicate somewhat effectively and want to control the outcome. It’s typically less expensive and faster than litigation.  Mediation works best when both parties are represented by counsel or have counsel to get legal advice.  Mediation generally does not work when there is a power imbalance, domestic violence or lack information for one party.

Uncontested Divorce:

This is the simplest and fastest option, suitable for couples who already agree on all aspects of their divorce.  It is required for all couples to resolve all property, support and child issues (if applicable) before a court can award a divorce. Couples cannot skip dealing with issues. An attorney can be involved in drafting and filing the necessary paperwork, but court appearances might not be required. Uncontested divorce is the most cost-effective option.

Choosing the Right Path:

The best approach depends on your specific situation. Consider factors like the level of conflict, communication between spouses, budget, and desired level of lawyer involvement. Consulting with a family law attorney can help you understand the different options and choose the one that best suits your needs.