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Divorce Alternatives – The Case for Litigated Divorce

posted by admin 10:00 AM
Wednesday, May 18, 2011

Over the past few weeks, I’ve been discussing divorce alternatives.  Both collaborative divorce and mediation have their place and have been successful for many divorcing couples.  However, most divorcing couples today still choose the “traditional” model – litigated divorce.

Since more than 95% of divorce cases reach an out-of-court settlement agreement, I will not focus on how the litigation process actually works, but rather, on why I think this is the preferred method for most cases.

Contrary to popular belief, divorce usually does not involve two people mutually agreeing to end their marriage. In fact, 80% of the time, the decision to divorce is unilateral, meaning one party wants the divorce and the other does not. That, by its very nature, creates an adversarial situation right from the start. This fact alone will often disqualify mediation and collaborative divorce, since both methods rely on the full cooperation of both parties and the voluntary disclosure of all financial information.

And it is for that reason that I prefer the traditional method for the vast majority of divorces (mediation and collaborative tend to work quite well for the 20% of cases where the decision to divorce is more mutual). Since we are already starting out with an adversarial and highly emotionally charged situation the chances are very high that collaboration or mediation might fail. Why take the risk of going those routes when the chances are very high that they might fail with the resultant waste of time and money?

The most important and most difficult parts of any divorce are coming to an agreement on child custody, division of assets and liabilities and alimony payments (how much and for how long). Although you want your attorney to be a highly skilled negotiator, you don’t want someone who is overly combative, ready to fight over anything and everything. That will not only prolong the pain and substantially increase your legal fees, it will also be emotionally detrimental to everyone involved, especially the children.

As I mentioned in my last blog post, most divorce attorneys, at least those that we recommend, will always strive to come to a reasonable settlement with the other party. But if they can’t come to a reasonable settlement or if the other party is completely unreasonable then, unfortunately, going to court, or threatening to do so, might be the only way to resolve these issues.

If you have tried everything else and you do end up in court, things can get really nasty and hostile. Up until this point both attorneys were “negotiators,” trying to get the parties to compromise and come to some reasonable resolution. But once in court, the role of each attorney changes. Negotiations and compromise move to the back burner. Their job now is to “win” and get the best possible outcome for their client.

And don’t forget, at the end of the day, it’s a judge who knows very little about you and your family that will make the final decisions about your children, your property, your money and how you live your life. That’s a very big risk for both parties to take and that’s also why the threat of going to court is usually such a good deterrent.

The bottom line is that every family, and every divorce, is different. Obviously, if you are able to work with your husband to make decisions and both of you are honest and reasonable, then mediation or the collaborative method may be best. But, if you have doubts, it is good to be ready with “Plan B” which would be the litigated divorce.

I hope this series on the different types of divorce has been helpful for you. Remember, in all divorces, no matter how they are handled, there are financial decisions to be made that will determine how the rest of your financial life will play out. It is highly recommended that you consult with one of our Divorce Financial Strategists™ as early as possible to ensure that the right decisions are being made.

All content on this site/blog is for informational purposes only, and does not constitute legal advice.
If you require legal advice, retain a lawyer licensed in your jurisdiction. The opinions expressed are solely those
of the author, who is not an attorney.
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One Response to “Divorce Alternatives – The Case for Litigated Divorce”

  1. Judy says:

    So important to have an attorney for your divorce. I can`t believe anyone would do it themselves.