“I’ll see you in court!” and statements like “having your day in court” might sound good and make for good drama. In divorce, unless you have no other alternative, it’s not a place you want to go for numerous reasons. Particularly if you and your spouse are able to come to an agreement through mediation or collaborative divorce.
Why?
Litigation costs can add up
Cost is one of the primary reasons. The litigation model is extremely expensive. The preparation of pleadings and responses is a formalized process. Often, more form than substance.
Paying an attorney to appear in court is another big expense. Not only do you pay for the hearing itself, you also pay for travel time and the expense of your attorney waiting around for your case to be called. It’s not unusual for the waiting around to be the biggest expense. This can sometimes take all day with your time actually in front of the judge being very short in comparison.
Your personal business becomes everybody’s business
Beyond cost is the public nature of appearing in court. Your personal business will be aired in a very public forum. You may know people who work at the courthouse or who are in attendance for other reasons. Even having people you don’t know in the courtroom waiting for their turn before the judge can feel quite invasive. In a mediation or collaborative divorce the only public document that is public is the divorce agreement. If a case is in litigation, the court file can also include claims and cross claims, motions and affidavits, all of which are open to the public.
Third-party control
More than any other kind of divorce, in litigation the power of the outcome lies in the hand of a third-party—the judge.
The judge sees literally thousands of cases per year. He/she will not know you or know very little about you. As one of three to eight probate judges in your county, you may or may not have the same judge for each appearance. Without much exposure to you or your spouse, it can be very difficult for a judge to know who is telling the truth or not. And they don’t have a lot of time to try to figure it out.
A judge makes many decisions based on pre-existing formulas. That can include division of assets, child support, parenting schedules, real estate, etc. This occurs when both parties cannot come to agreement before appearing in court.
Additionally, to make any changes to a temporary order or agreement also requires an appearance in court. Appearances in court are then subject to the court calendar and that can take time. Not to mention the added legal fees and other expenses associated with a further visit to court.
The contrasts of divorce mediation and collaborative divorce with litigation are almost night and day. Spouses come to the negotiating table in an effort to come to some sort of agreement. In divorce mediation, couples will do the legwork to provide all the needed financial statements and other pertinent materials, saving significantly.
While couples in litigation are subject to formulas for the majority of things that need to be settled, divorce mediation and collaborative allow for thinking outside the box. For example, in litigation, a judge may order the family home to be sold and the proceeds split if one party cannot buy out the other. In mediation or collaborative, couples may negotiate a plan where one party can stay in the family home and make payments over time to the other spouse with an agreed upon date of transferal of the property.
Parenting schedules, alimony and child support payments can also be negotiated rather than being slave to a formula. Pensions, real estate and other assets also can be negotiated through mediation or collaborative.
Consequently, you and your spouse control a large part of the outcome of your divorce settlement. The particulars are discussed in private, outside the earshot of the general public. You appear in court before the judge merely to submit your agreement.
Finally, divorce mediation and collaborative divorce will cost significantly less on an emotional level than your average litigation divorce. Yet as anyone who has ever gone to court will tell you, the cost goes far beyond dollars. Each court appearance has the potential to negatively impact the relationship with your ex and, potentially, your children.
Nobody wins in any kind of divorce. In divorce mediation and collaborative divorce, couples tend to lose less and create a basis for interaction as needed after the divorce is over. When you go before the judge, the outcome and fallout from that outcome can have a lasting impact.
