Know Your Divorce Options: Comparing Collaborative, Mediation, and Litigation
Posted in Divorce on March 15, 2016
Every couple, every marriage, and every divorce is different. You owe it to yourself, and especially to your children if you have any, to learn your divorce options and choose the path that’s best for you. Most people think of divorce as taking place in a courtroom, but for many people, alternative dispute resolution options offer a less stressful, less expensive divorce process.
Understanding Maryland Divorce Options
In Maryland, you can have a litigated divorce, meaning that one of you files a lawsuit to start the divorce. If you are unable to settle all the issues in the divorce, eventually it will go to trial. Mediation is a voluntary process in which you and your spouse work with a neutral mediator. The mediator helps you frame the issues you need to resolve and makes sure each of you get to be heard, but does not make a decision; he or she simply facilitates your decision-making process. You and your spouse may or may not choose to have attorneys for this process.
In Collaborative divorce, you and your spouse each have an attorney trained in Collaborative law. You negotiate the terms of your divorce in a series of meetings. You and your spouse pledge to fully and honestly disclose all information, and to not use any information disclosed against the other party in litigation. The idea is to foster respect and communication without fear that what you say will be used to hurt you later. Collaborative also involves other professionals as needed, such as financial neutrals and divorce coaches, to give you and your spouse the support and information you need to reach a settlement.
How Do the Options Compare?
When you boil it down, most people are concerned about the same things in divorce: “How much will it cost? How long will it take? How much control will I have over the process? And how satisfied will I be with the outcome?” Let’s see how the options stack up against each other.
In general, the more hours you have to pay an attorney for, the more your divorce will cost. Therefore, a mediated settlement, reached with minimal attorney involvement over a few sessions, is going to be much less expensive than a litigated divorce in which you and your spouse have attorneys who spend many hours filing and arguing motions, writing briefs, reviewing documents, and preparing for trial. Collaborative divorce usually falls somewhere in between: there is typically more expense than mediation because attorneys and other professionals are involved, but the total cost is still usually far less than litigation.
Unless you qualify for a divorce by mutual consent or a divorce on fault grounds, divorce in Maryland takes at least a year of living separate and apart to be final. How much time it takes to reach settlement is a different question. With a litigated divorce, the more you and your spouse fight, the longer your divorce will take to resolve. You are also bound by the court’s timetable. With mediation and Collaborative divorce, you and your spouse set the schedule, and can take as much time, or as little, as you are comfortable with.
Similarly, in mediation and Collaborative divorce, you and your spouse are in the driver’s seat. You have the flexibility to develop options that a court would never come up with, like a unique parenting time schedule that fits your family’s particular needs. In a litigated divorce, you may not have to have as much “hands-on” involvement in reaching an agreement, but you will have to live with whatever resolution the court imposes on you.
It’s often joked that divorce judges know they’re doing their job right if neither side leaves the courtroom happy. Of course, in truth, most judges try to do the right thing, but they simply cannot know your family and its needs as you do. As a result, courts tend to order resolutions to issues that are likely to work for most people, but not customized for you.
The amount of control people have over their divorce process seems to have a lot to do with how satisfied they are with the outcome of their divorce. Having control over the resolution of issues is empowering, and you’re more likely to comply with an agreement you helped create than a judgment that was imposed upon you. This can lead to lower legal costs down the road, as you and your ex are not constantly running back to court to have your divorce judgment enforced.
Alternative dispute resolution options like mediation and Collaborative divorce are excellent options, but they are not for every couple or every situation. It’s best to sit down with an attorney who is familiar with multiple divorce options so that he or she can explain to you how each divorce process might work given your particular circumstances.