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Choosing Divorce Court Over Mediation or Collaborative Divorce

Choosing Divorce Court Over Mediation or Collaborative Divorce

If you are considering divorce, there are three basic procedures you can use.  First, there is the traditional litigation route.  This means one spouse files for divorce and then any disputes that cannot be negotiated will be settled by a judge or arbitrator.  This can be costly and painful, so many spouses will seek out other options.  

Another common option is mediation, where a professional mediator will guide the two spouses towards an agreement on their divorce.  The problem with that is the mediator is not able to settle disputes if the parties deadlock.  Plus, in a mediation nobody is necessarily looking out for the best interest of each spouse.  

A third option is a collaborative divorce process, where each spouse hires their own lawyer but the lawyer’s agree to work collaboratively and share information freely.  Many divorcing couples are actually even able to simply hash out their separation agreements between themselves, especially if they do not have children or large assets to divide up.  

The bottom line is that any process outside of the courtroom really depends on a good relationship between the spouses.  So here are some situations where divorce is probably best handled in the court.

One spouse wants to make the other “pay”

Litigation is really the best place for an ugly divorce.  Some states have “fault” grounds for divorce for example, where a court can make an abusive or unfaithful spouse pay monetarily for harming the marriage.  Additionally, some divorcing spouses are simply so mad they cannot participate in a mediation or agree to work collaboratively with their spouse.  

One spouse refuses to communicate

Many people become unresponsive when their spouse tells them they want a divorce.  This can simply be due to shock or it may be that the spouse hopes to find a way to reconcile.  Either way, it is probably best to secure the services of an attorney and file for divorce to get the process moving.  

One spouse is hiding assets

As a general matter, each spouse is entitled to half of what the couple earned during the marriage.  Some people cannot accept that fact and will hide assets from their spouse.  This is commonly a situation where one spouse works and manages the finances while the other is a homemaker.  It can be difficult for the homemaker to know exactly what he or she is entitled to.  Another common situation is a couple that runs a small business and one partner squirrels away some cash or inventory to keep it from their spouse. In court, a judge can order the other party to share information in a way that is not possible in other settings.  

The couple has strong disagreements over parenting

Children are often the sticking point in any divorce. Each parent generally has equal rights to see and care for the child, unless there is actual abuse or neglect. If one parent will not give an inch on parental rights, then it may be best to let a judge hear the evidence and come up with a custody agreement that is in the best interest of the child.


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