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Divorce Confidential: Should I Negotiate or Litigate My Divorce?

09/25/2013 04:56 pm ET | Updated Nov 25, 2013

Recently, a client reminisced about her excruciating decision to divorce her husband. The couple had been married for almost 20 years and the thought of separating after years of marriage terrified her. In this case, the couple had been fighting for years and this spilled into their divorce proceedings. As a result, their teenage son was essentially catapulted into the center of the divorce action. By the end of the divorce, their son was just as emotionally wrecked as his parents.

Now the truth of the matter is that while the effects of divorce on your loved ones cannot be completely avoided, it can be somewhat alleviated depending on whether you choose to negotiate your divorce or litigate it. So what is a negotiated divorce and why would most family law attorneys propose this option first over a litigated divorce? Here is a peek into the different ways a negotiated divorce can look like:

  • Cooperative Divorce: In this scenario you and your spouse are each represented by your own attorney. Here, you both can direct your attorneys to work together through settlement negotiations, to reach amicable decisions without ever meeting in a courtroom.
  • Collaborative Divorce: In a collaborative divorce, you and your spouse have made a firm commitment to keep matters out of court, and focus on problem solving in a confidential, private setting. Collaborative trained professionals are hired, including attorneys, financial experts and mental health professionals to assist in preserving the financial and emotional resources of your family.
  • Mediation: In mediation, you and your spouse are unrepresented and instead meet with a neutral mediator, sit around a table and hammer out the details of your divorce. Rather than have a judge decide your fate and make life-altering decisions, you and your spouse are given the opportunity to carve out a plan that works best for you and your family.

With those options in mind, here are a few things to consider in determining whether a negotiated divorce is for you:

  • Do you and your spouse communicate? If you and your spouse are on talking terms, it is a good sign that you may be able to talk about outstanding issues, especially when it comes to your children and finances.
  • Do you want to minimize attorney's fees and costs? Negotiated divorces save money because you're not spending money on attorneys (in the case of a mediated divorce), or in cases where you and your spouse each have an attorney, these fees can be minimized since your attorney is not spending time on preparation and paperwork for Court.
  • What Are Your Future Plans? Are you looking to get married again...and soon? In a negotiated divorce, much time can be saved if you and your spouse are on the same page. In protracted litigation, divorce proceedings can be drawn out for years, and in some cases, drawn out for a period longer than you were even married!
  • Do You and Your Spouse Still Respect Each Other? The love and romance may have evaporated, but if the respect is still intact, a negotiated divorce may be a good option. If you and your spouse respect each other, the likelihood of bringing your child into the divorce is minimal and it helps to maintain a harmonious post-divorce friendship.
  • How Important Is Privacy To You? Another thing to consider is how much privacy you require in your divorce. In a litigated divorce, the paperwork you file is an open public record. What that means is any dirty laundry that is aired out in your paperwork can be read and reviewed by any member of the public.
Negotiated divorces will help alleviate the pain and stress of a divorce. However, that it is not always an option if your spouse is simply unwilling to participate in proceedings. In such circumstance, a litigated divorce may be your only option. While your patience will be tested in a litigated divorce, there are actions you can take to move the process forward to reach your ultimate goal:

  • Keep Your Kids Out Of It: Don't talk to your kids about the divorce. This includes venting and criticizing the other parent to your child. Don't let your kids read legal paperwork or have it lying around the house for them to accidentally find. In fact, you might try saying a few kind words about the other parent. Kindness is a good thing.
  • A Little Compromise Goes A Long Way: You might be surprised that when you take a few steps towards compromise, your spouse may be willing to meet you, even if it's only a little bit. Divorce is a process and one little step still means that you're moving one step further towards your ultimate goal.
  • Reach Out And Talk Things Out: While this may not always be a realistic option (such as in Restraining Order cases), it may be something to consider if you want to move from a litigated divorce to a negotiated one.
  • Try and Understand Your Spouse's Point of View: Take one minute to consider your spouse's point of view. Your spouse may be proposing something reasonable. So taking the time to understand their point of view, may help alleviate the pressure.

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