When you or your spouse file for divorce and the litigation starts, the process can become quite emotionally strenuous. You’ll feel like you must make a ton of important decisions as fast as possible and must accept what the court decides in terms of child support, parental visitation, alimony (if applicable), and more. However, it is also important to understand that there are different ways to get divorced, the most amicable one being mediation. Let’s know the difference between divorce litigation and mediation and their respective pros and cons.
A Glimpse into Litigated Divorce
A litigated divorce is by far the most common form of divorce. This happens when both spouses contest the divorce in terms of marital assets, child support, custody of the child, etc., and don’t seem to look for a middle ground or amicable solve such issues. This is when one of the spouses petitions for divorce in the family court.
The petitioner (the spouse filed for divorce) is essentially asking the court to intervene and decide the important factors in the process equitably using typical legal procedures defined in that jurisdiction. Litigated divorces require both spouses to come to court and duly implement the specific orders given to them (such as the discovery process, revealing financials, etc). It is common for litigated divorces in the US to last up to a year.
A court-mandated divorce usually ends when the judge issues a final divorce decree or order. However, spouses do have the option to represent themselves but many hire experienced divorce attorneys due to the complexities involved in litigation, such as cross-examining the spouses, witnesses, etc.
However, it is also worth noting that the court allows both spouses to settle the matter anytime they want during the litigation. If these choose to do that, the contested divorce will transition into an uncontested one. This route is comparatively better, less expensive, and leads to more amicable results.
Understanding Divorce Mediation
Divorce mediation can be a less intrusive and contention way of settling sensitive matters involved in a divorce. It is also known as an ADR (alternative dispute resolution). This is where a divorce mediation expert aims to help the spouses settle the most difficult aspects of the divorce without necessarily involving attorneys. This can be a very cost-effective way to legally end the marriage without ever stepping into a court or making your financials and other elements of the divorce public.
It is also vital to understand that divorce mediators aren’t meant to take sides or work towards changing or deciding the outcome of your divorce. Their primary objective is to try and help you and your spouse get to an amicable compromise that will then lead to a marital settlement agreed upon by both spouses. Once both spouses agree and settle, the divorce will transform into an uncontested one.
Depending on a variety of factors, mediated divorce could wind up in a day, take a couple of weeks, or last for months. The duration typically relies on factors such as:
- How many topics need to be discussed
- The complexity of those topics (for instance, both spouses have a lot of marital assets to divide)
- How cooperative both spouses are during the mediation sessions
- How much time it takes between those sessions
The Pros and Cons of Going for Mediated Divorce
Pros
It is substantially Less Expensive
Mediation can be more cost-effective than litigation, primarily since you don’t necessarily need to hire expensive divorce attorneys. On the other hand, litigation divorces tend to come with exorbitant legal fees.
Quicker Results
Divorce mediation typically provides both spouses a faster way to resolve the most contentious aspects of their divorce compared to attending trials. This is because both spouses sit together with the mediator, amicable and independently settling situations, such as how much should each spouse get in terms of marital assets, agree on the right amount of child support/ alimony, and more. In contrast, litigated divorces may tend to last up to a year.
More Control
Mediation provides both spouses with a high degree of control, especially when it comes to the outcome. They can decide their future together rather than asking a judge to intervene.
Cons
Cooperation
A successful mediation requires both spouses to agree to cooperate and negotiate amicably (which can be a massive challenge on its own).
Mediation May Not Be Right for Complex Situations
Divorce between high-net-worth individuals or a single spouse owning significant wealth and marital assets can be very complex and typically requires the assistance of experienced divorce attorneys.
No Lawyers
While spouses aren’t required to hire attorneys in mediation, if they do, they can’t bring their lawyers to the mediation sessions.
The Pros and Cons of Divorce Litigation
Pros
Legal Enforcement
In divorce litigation, the decision of the court is final and can be enforced by legal authorities.
Good for Sophisticated Matters
Litigation can be excellent for individuals who have widespread assets and financials.
Important for Highly Contentious Situations
If there is a history of domestic violence, negligence, and/or abuse between the spouses, the court must step in to make the matter more transparent and final.
Legal Representation
During litigation, you can hire the best divorce attorneys highlighting and fighting for your interests.
Cons
Can Be Expensive
Divorce litigation is very costly in many cases.
The Process Takes Time
Litigation tends to last longer. It is not uncommon for divorce cases to last up to 12 months.
No Control Over Results
Once the judge decides child support and equitable division of marital assets, you can’t have it modified or changed.
Divorce Mediation vs. Litigation: Which Option Will Suit You?
Going for litigation vs. a mediated divorce will boil down to specific factors. For instance, if there is no history of fighting or domestic abuse in your marriage and both spouses talk to each other or respond to each other with a modicum of respect, it is better to settle the divorce through mediation as cooperating with one another will not be a major issue.
However, if both spouses become emotionally charged and uncooperative, mediation will not help. Plus, litigation is also better suited for spouses who have complex financials and require expert help.