Ending a marriage is rarely easy. Disentangling yourself from someone with whom you’ve spent years of your life is emotionally and mentally taxing. There is no one right way to handle the emotional, financial, and legal complications involved in the process.
In fact, you have the opportunity to choose between several methods of dissolving your marriage. Once you have initiated the dissolution proceedings, you and your spouse have the right to decide whether you want to take your divorce to court or negotiate elements of it independently.
Choosing the right solution for your divorce can significantly affect how long the process takes and how stressful it is. Below, you will learn the three basic methods for reaching a divorce settlement, their benefits and drawbacks, and how to choose the best alternative for your situation.
The Three Primary Methods for Resolving Divorce
California provides three main solutions for ending marriages that involve disputes, significant assets, or children. These are litigation, collaboration, and mediation. Each method has benefits and drawbacks that make them best suited for specific circumstances. To determine the approach that will work best for your situation, it is crucial to understand how they differ.
Litigation is the process of taking your divorce before a judge. This is the solution that is most often portrayed in media, so it is the most familiar option for many couples. It is typically the most time-consuming and stressful approach, so it is best reserved for situations where negotiation is unlikely to succeed.
When you choose to litigate your divorce, you and your spouse will schedule hearings or a full trial before a judge. During these proceedings, you and your attorney will argue your case regarding disputes within your divorce, and your spouse will do the same. After hearing both sides of the conflict, the judge will issue a ruling determining how it will be resolved.
Litigation may cover specific elements of the case or the entire process. For example, some couples may only require litigation to resolve child custody or spousal support concerns. Others may have such serious disagreements that they need a judge to oversee every matter involved in the divorce.
You may choose to litigate your divorce in your county’s public family courts or by hiring a private judge. Both approaches will result in legally binding orders being issued regarding your dispute. General courts may be more accessible but can also lead to significant delays due to scheduling requirements. Furthermore, many matters presented in family court are considered matters of public record, so anyone may look up the details of your relationship. In contrast, hiring a private judge may lead to higher costs, but many elements of your divorce will remain private, and you will face significantly fewer delays during the proceedings.
It is important to note that a significant majority of litigated divorces do not actually go to trial. Instead, spouses and their attorneys negotiate before the trial and achieve a settlement before appearing in court. Litigation proceeds to trial only in cases where couples cannot achieve a settlement before their court date.
Collaborative divorce is working directly with your spouse and your respective attorneys to develop a divorce settlement that satisfies both of you without judicial interference. When you collaborate, you agree to negotiate fair terms for considerations such as the division of assets, spousal support, and child custody. This approach works best for couples who remain amicable or have few or no disagreements about handling these concerns.
During collaborative divorces, the spouses are responsible for working together to find terms that suit both of them. Your attorney will work with you to ensure you understand your rights and suggest compromises, but you remain in control of what offers you accept or decline. This gives couples significantly more freedom to shape their divorce settlement into something mutually satisfying rather than risking a judge issuing a ruling that neither party likes.
Collaboration is also the primary drawback of this approach. If your spouse is unwilling to compromise on a matter, you may not be able to negotiate a fair and satisfying settlement. In that case, you may need to litigate that specific matter to have a judge decide it for you.
Between litigation and collaboration lies mediation. In this approach, you hire a neutral third-party mediator to oversee negotiation meetings between you, your spouse, and your respective attorneys. The mediator may make suggestions, guide the meeting, and ensure your discussions remain civil. They will not make legally binding orders, however.
Mediation can be an excellent compromise between collaborative divorce and litigation. Having a neutral party present ensures that even if emotions run high, there is someone to keep negotiations focused on the task at hand. Since they are not directly involved in the situation or advocating for either party, they may also see solutions that you may not have noticed on your own. This makes mediation a great choice for couples who have disagreements but want to negotiate.
As with collaborative divorce, though, mediation requires both parties to be willing to compromise and work together. If either person is unwilling to bend, it may still be necessary to litigate certain aspects of the case.
Choosing the Right Solution for Your Split
Litigation, collaboration, and mediation all have their strengths. Collaborative allows you to work with your spouse to reach a settlement that makes you both happy. Mediation does the same while adding a buffer to help you remain professional despite any emotional turmoil. Meanwhile, litigation allows you and your spouse to have your case heard by a judge to receive a fair and legally binding ruling on any issues on which you cannot reach a compromise.
Choosing the right solution can be difficult. If you are unsure what method will work best for your situation, you should consult with the experienced divorce attorneys at Madigan & Lewis, LLP. We have years of experience guiding clients through mediation, collaborative divorce, and litigation. Schedule your consultation today to discuss your case and learn more about how we can help you choose the right approach and support you through the process every step of the way.
The material contained herein has been prepared by Madigan & Lewis, LLP for informational purposes only, not legal advice. This information is not intended to create – and receipt of it does not constitute – a lawyer-client relationship between Madigan & Lewis, LLP and the reader. This website is intended to provide information about our law firm and its services and is not