Choosing Divorce Court Over Mediation or Collaborative Divorce

Learn why you might want to opt for divorce court rather than mediation or collaborative divorce.

By , Retired Judge

How Do Traditional Divorce, Mediation, and Collaborative Divorce Differ?

When a marriage is irreparably broken, normally the couple's ultimate goal is to resolve their outstanding differences as quickly and painlessly—both emotionally and financially—as possible. The most common issues couples will face during their divorce include:

All of your divorce-related issues must be resolved before you can complete the process. But how to reach that goal depends, in large part, on your particular circumstances.

What's Involved in Heading Straight to Divorce Court?

If you want to legally end your marriage, at some point you're going to have to involve the courts. But going directly to court to battle things out, without first attempting to resolve your marital issues directly with your spouse, can result in a long, stressful, and expensive divorce.

When divorcing spouses can't agree on all of their divorce-related issues, they will end up going through what is called a "contested" divorce process. To begin a contested divorce, one spouse must file a divorce "petition" (also called a "complaint") with the court.

There are several steps to this process. The longest phase is usually the divorce discovery period, which often takes from two to six months (sometimes more), depending on how complex the case is. During discovery, spouses must exchange all relevant financial documents (such as tax returns, bank accounts, and property valuations), correspondence (including emails), and any other information that may relate to any aspect of the divorce.

Depending on the nature of the contested issues, there may be other court proceedings involved, particularly if the couple has children or temporary support needs. These may include temporary custody and/or temporary support and alimony hearings. If the spouses can't agree on these issues along the way, a judge will have to decide any and all contested aspects of the case, after a divorce trial. A contested divorce typically takes a year or more to conclude.

The Divorce Mediation Process

Divorce mediation is a form of Alternative Dispute Resolution (ADR)—where both parties try to resolve their issues outside of court. You and your spouse must choose a qualified family law mediator. Unless you agree otherwise, you'll share the mediator's fee. This individual will meet with both of you over a period of time, to assist you in reaching a meeting of the minds on those issues you're having trouble resolving.

If you're able to resolve all of your divorce issues, the mediator will prepare a Property Settlement Agreement, also known as a Marital Settlement Agreement or Divorce Settlement Agreement, which will contain all of your agreed-upon terms. The mediator will usually encourage both you and your spouse to have your own attorneys review the agreement before you sign it.

You'll still have to go to court to officially end the marriage, but in this scenario, the court will review your settlement agreement, and if approved, it will become part of the divorce judgment. It's not unusual for an uncontested divorce to conclude within a month or so of the date you file the petition.

Collaborative Divorce

Collaborative divorce is another form of ADR that is a kind of hybrid between traditional divorce and mediation. But, like mediation, the collaborative process alone doesn't actually end your marriage.

With collaborative divorce, you and your spouse must each have an attorney who's trained in the collaborative law method represent you throughout the process. Although laws vary from state to state, it's standard procedure for the spouses to sign a Collaborative Law Participation Agreement, which dictates certain rules you must follow.

In collaborative divorce, the spouses and their attorneys hold a number of "4-way" sessions, to attempt to resolve outstanding issues. Typically, the couple will also bring in joint experts, such as joint financial planners or accountants, child and family therapists, and possibly appraisers.

The spouses must commit to a team approach, where everyone is working toward the stated goal of settling all issues outside of court and in a way that works bests for the family.

One of the biggest downsides to the collaborative approach is that if the settlement efforts fail, the collaborative attorneys will have to withdraw from the case and cannot represent the spouses in a contested court proceeding. If the spouses drop out of the collaborative divorce process and end up in court, they'll hire new attorneys, with a second round of legal fees (in addition to the collaborative divorce fees).

As with mediation, the end product of a successful collaborative divorce is a written settlement agreement, which will ultimately become part of a divorce judgment.

When Should I Take My Divorce to Court?

You might wonder why anyone would choose going to court without trying ADR first. In large part, the reason rests with the spouses.

To be successful, mediation and collaborative divorce both require a mutual, good faith effort to settle. If a spouse doesn't have this mindset going in, the chances of success are low, and you may be wasting your time and money. You'll often see this where one spouse is combative, intent on "punishing" the other, is seeking revenge, or refuses to negotiate, no matter how irrational or costly that position may be. If that's the case, filing for a traditional court divorce may be your only choice.

There are also certain personality types that pretty much guarantee ADR will fail. Generally speaking, these personality types are characterized as:

People that fall into these categories are generally unwilling to compromise, no matter the cost to themselves or their families. And when there's a history of violence, a fair negotiation is often impossible. Abused spouses are often terrified of saying or doing something that might offend the abusive spouse, which will carry into all meetings between the two. That fear negates any hope of a level playing field. If you are in abusive situation, you may want to contact the National Domestic Violence Hotline at 800-799-SAFE (7233).

When looking for help, remember to consider how private your computer, Internet, and phone use are. Consider whether there's anything you can do to prevent someone else from learning that you're doing research or seeking help. Some victims, for instance, might use the same computer or device as the abuser, or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser.

In dealing with any of these personality types, it's normally best to start with the traditional divorce process, where the proceedings take place in the structured environment of the courthouse and access to a judge's intervention is readily available.

Choosing the best route to resolve your marital issues can be a complicated decision. Because no two cases are exactly the same, consider consulting with an experienced family law attorney in your area before making a decision.

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