There are several different options available to you when you are going through a divorce. Generally, these options can be broken down into litigation or alternate dispute resolution. Within these two broad categories there are more specific options available, all with their respective pros and cons. Additionally, your path through the process may involve both of these options at some point or even simultaneously.
Litigation is necessary when your and your spouse do not agree on the terms of your separation and/or divorce and are unwilling to engage in negotiations to resolve your issues. It involves having your case resolved by a judge. When a case is litigated a complaint for divorce is filed, the parties exchange information in the discovery phase, immediate issues are sometimes addressed through motion practice, and if you are still unable to settle the matter, ultimately a trial is held before a judge. The judge then issues a decision resolving your case by applying the law to the facts of your case.
Although litigation is triggered when the parties cannot agree amongst themselves, the initiation of litigation does not preclude parties from reaching an agreement on their own. In fact, the court’s own divorce procedure mandates that the parties attend two mediations intended to help the parties resolve their dispute without the need for a trial. Parties are required to attend an early settlement panel and economic mediation, both of which involve matrimonial attorneys volunteering their time to help the parties arrive at an agreement voluntarily. Therefore, many cases begin in litigation but ultimately end with a signed agreement between the parties.
Alternate Dispute Resolution: Arbitration
Arbitration is considered a form of alternate dispute resolution, but it is like a traditional court litigation in that it involves the resolution of contested matters by a third party. Arbitration is decided by an arbitrator (often a retired matrimonial judge or matrimonial attorney) rather than a judge. It is binding like a court decision and involves presenting evidence and testimony to the arbitrator. Some parties opt for arbitration because, at times, it can be faster and less expensive than traditional litigation. It is also confidential, which can be important if there is particularly sensitive information that should not become public record.
Alternate Dispute Resolution: Mediation
Mediation is a process in which you and your spouse, with or without attorneys, try to resolve your case amongst yourselves with the assistance of the neutral mediator. This is sometimes done outside of the court system but can also occur simultaneously with an existing litigation. The mediator is typically a matrimonial attorney or a retired judge. Mediation is confidential and the mediator cannot issue decisions. Rather the mediator’s role is to work with both parties to try to assist the parties to bridge the gap between the parties’ respective positions or to offer creative solutions that may have not been previously considered by the parties. An agreement reached through mediation only becomes binding once it is reduced to writing and signed by both parties. Mediation is often faster and less costly than litigation when the parties are motivated and approach the process with an open mind. There is also great mental and emotional value in having input and say in how your matter is resolved, as opposed to having a court make a unilateral decision on your case.
Falling within the broad category of alternate dispute resolution is the collaborative divorce process. Collaborative divorce is an alternative to litigation and is centered upon attempting to mediate a resolution of your matter. It differs from general mediation in that each party makes a commitment to work outside of the court system to transparently and respectfully develop a settlement that is in the best interest of the family unit. Each party must choose an attorney that has been trained in the collaborative divorce process. In some cases, there are additional neutral professionals involved in the process. The parties must sign a contract stating that if the collaborative process is not successful and they want to resort to litigation, they must retain different counsel. This mandatory “reset” of the divorce is intended to motivate parties to proceed in good faith with the process and do the work necessary to make it productive. If you have additional questions about the collaborative divorce process, please do not hesitate to contact our member, Wendy M. Rosen, Esq., who is also a member of the Mid-Jersey Collaborative Law Alliance.
What Option is Right for Me?
Below are a few scenarios that may help point you in the right direction as to what divorce option is best for you. However, each person’s circumstances are different, so please keep in mind that your way forward will be unique to you.
If your spouse is completely unresponsive or unreasonable, then you will likely need to initiate litigation so that the court can compel him or her to do something and move the divorce process forward.
If you have an emergency that needs immediate intervention, then you may need to immediately initiate litigation so that the court can consider the issue on an emergent basis.
If you have resolved some but not all of your issues, and you have reached an impasse, you may have to litigate the remaining unresolved issues.
If you have a spouse that has hired an attorney who is more concerned with making sure he or she keeps getting paid than settling the case, then you may need to litigate the matter or hopefully convince your spouse to hire someone else!
If you have a propriety business and do not want the inner workings of that business disclosed in a public forum, then you may want to consider arbitration.
If your case has been assigned to a judge who was just appointed as a judge and has little or no experience in family law, then you may want to consider arbitration.
If you and your spouse have resolved most of the issues on your own, then mediation (or collaborative divorce) may help you resolve the last remaining issues.
If you and your spouse agree that you want to do what’s best for your family as a whole, then mediation (or collaborative divorce) may help you fully resolve the matter.
If you and your spouse still maintain some level of trust and respect for one another, then mediation (or collaborative divorce) may help you resolve the matter.
If you and your spouse are still amicable but have determined that staying married is not what either of you want, then mediation (or collaborative divorce) can help you end the relationship in an amicable manner.
If you and your spouse both agree that you do not want to spend your children’s college savings on fighting about issues in court, then mediation (or collaborative) divorce is probably right for you.