Divorce Mediation vs. Litigation: Which Approach is Right for You?

Divorce Mediation vs. Litigation: Which Approach is Right for You?

“Amicable divorce” is a relative term. Even if you and your spouse honor your commitment to treat each other fairly and play by the rules during your divorce case, your spouse will probably end up saying or doing something that makes you feel even angrier and more hurt than you ever did during your marriage. Even good divorces are painful. You might see recently divorced couples smiling in pictures on Facebook and promising to always be best friends, but social media does not tell you the whole story. The best divorces are the ones where the couple does not have to go back to court as adversaries after the divorce becomes final. This means that the time for the messy parts to happen is now; state your apparently non-negotiable request now, and state them clearly. The court will inevitably order you to negotiate about them, which will probably go better than you expect it to if you work closely with your lawyer. You must only present your case before a judge if negotiations break down. A Whittier divorce lawyer can finalize your divorce through mediation, unless your ex is truly impossible, in which case your lawyer can present a strong case before a judge.

Divorce Mediation is Time-Consuming, But it is Less Costly

Almost all couples who get divorced in California attend mediation. When a couple files for a contested divorce, the court first refers them to divorce mediation to attempt to reach a settlement and to draft a parenting plan if they have minor children, before it will agree to decide these issues at trial.

During divorce mediation, you and your spouse, accompanied by your respective lawyers, meet with a mediator. A court-certified mediator is not a judge, but someone who has a professional background in conflict management-related fields. The mediator facilitates the negotiations, but you and your spouse set the terms of the agreement. Negotiating with your spouse, who is so hard to get along with that you decided to get a divorce, is not fun, but mediation can be empowering. In divorce mediation, you are the one who gets to decide how much marital property and parenting time you get, not the judge. Besides, it is much easier to negotiate with your estranged spouse when you let your lawyer do the talking.

Litigation Protects You From a Bullying Ex, But the Final Decision is Outside Your Control

When mediation is successful, the two spouses, their lawyers, and the mediator sign a marital settlement agreement (MSA) and submit it to the judge. When the judge signs it, it becomes the court order dissolving the marriage, and you become legally single. When mediation is not successful, your case goes to trial. You and your ex can both present evidence and summon witnesses to persuade the judge to rule in your favor, but the judge has the final decision. It is possible that both parties will be unsatisfied with the outcome of the trial.

Divorce trials are worse in California than they are in most other states because of California’s community property laws. In California, family court judges must divide a couple’s property evenly in half; they may only deviate from this rule in extraordinary circumstances. This does not mean that your ex will take half of everything that you own; marital property is only the assets that both spouses acquired during the marriage.

Can You Avoid Both Mediation and Litigation?

A lucky few couples can avoid mediation and litigation in their divorce cases, as well as an unlucky few. Mediation and litigation are only part of the process if you get a contested divorce; an uncontested divorce does not require these steps. The unlucky few couples who file for uncontested divorce are the ones who are so poor that they do not have any property worth fighting over; most of them were only married to each other briefly. The lucky few are the ones who go through collaborative divorce. These couples tend to have substantial marital assets, and if they are relatively young, they also have minor children.

In a collaborative divorce, each spouse hires a lawyer, and all four people sign a collaborative divorce agreement. They then engage in mediation-like negotiations, involving the help of mediators, financial experts, or anyone else whose guidance they need. In the end, they emerge with an MSA and a parenting plan. Then they file for uncontested divorce and submit the paperwork they have drafted during the collaborative divorce process. In other words, the divorce does not involve the courts at all until it is ready for the judge’s signature.

Contact the Law Offices of Omar Gastelum About Amicable Divorce

A family law attorney can help you finalize your divorce without going to trial. Contact the Law Offices of Omar Gastelum and Associates APLC in Whittier, California to set up a consultation.

Sources

Resolve Your Divorce or Separation Out of Court – divorce_or_separation_selfhelp (ca.gov)

A Whittier divorce lawyer can represent you in divorce court, mediation, or the collaborative divorce process.