By Brett Jones October 30, 2018
ADVANTAGES AND DISADVANTAGE OF LITIGATING YOUR DIVORCE

You need a court to get divorced, but you don’t need to go to court to get divorced. By this I mean it’s possible to obtain a divorce decree from a court without actually appearing in the court. You can do this by using an alternative process instead of litigation. However, you might not want to. This post explains different approaches to divorce and gives you some pluses and minuses of each.

Broadly speaking, there are four ways to get divorced. You can:
● do it yourself
● litigate
● mediate
● collaborate
These choices are briefly discussed below.

Do it yourself. “DIY” divorce is possible. Theoretically, you and your spouse sit down, figure out the terms under which you will live, and file legal documents you can find online (https://www.nycourts.gov/courthelp/diy/divorce.shtml). It’s cheaper. There are plenty of “how-to” books and websites. And the couple is completely in control of what this process looks like and how they proceed, and what the outcome is.

On the flip side, if the couple does not agree, there may not be a lawyer involved to provide legal advice, or that has the authority of a Judge to enforce orders and the law. One of the most important downsides to this process is that there’s a risk your decision-making will be uninformed. This can potentially create substantial issues down the road that could have been avoided had the couple obtained proper legal advice. As an aside, documentation that’s available online is often written in traditional male/female terms and may fail to address concerns of same-sex couples. At the end of the day, most couples need help. I have worked with clients who are going through this “DIY” process with their spouse, and meet with me from time to time to be educated on the law and what may or may not be reasonable, and to develop a plan with with to go back to their spouse. If I am involved, often once the couple reaches an agreement, I will draft the Separation Agreement and the divorce documents. Even with me involved, it is the least expensive divorce process option.

Mediation. This process is voluntary, private and confidential. A neutral third party supports a conversation between you and your spouse about the subjects you need to deal with in divorce, such as division of assets, payment of liabilities, taxes, and a parental visiting plan if you have children. It’s your show, just like DIY, but a mediator can help you through the rough spots. You can access outside experts such as child specialists and financial professionals, and you can make decisions that work for you and your family. You can use a lawyer or not. Usually mediation is cheaper than litigation. The end result of a mediation will be a final Separation Agreement.

On the flip side, your mediator will not take sides. The mediator does not make decisions and will not give you his/her personal opinion, even if you ask. If there is an imbalance of negotiating power between you and your spouse, a mediator may be unable to establish a fair balance.

Collaboration. In this process of negotiation each party is represented by counsel. As in mediation, you have access to specialists in child development/mental health, tax, real estate, career planning, business valuation, special education resources, etc. As a practical matter, these ancillary specialists are used more often in collaboration than in mediation, and as a result this process typically costs more than mediation.

On the flip side, if the collaborative process does not produce agreement and the case switches to litigation, neither lawyer who represented a party in the collaborative process can represent either party in the litigation. This can be inefficient and uneconomical in terms of both time and money, because you basically have to start over. However, the majority of matters that start out in collaboration, finish in collaboration with a Separation Agreement and if they parties want, a divorce.

Litigation. This is the classic adversarial process that you see in the movies. The judge keeps the case on schedule, can issue protective orders if necessary, and provides enforcement if a court order is ignored. If a spouse is hiding assets, the court can compel disclosure in accordance with New York law.

On the flip side, litigation lacks the creative potential of other approaches. The judge makes decisions by applying the law to the facts of your case and if the Judge decides the case, the couple has little control in the process or outcome. In summary, a complete stranger (the Judge) will decide and dictate your financial future and that of your children and family. (Of course, your version of the facts may not be your spouse’s version, and sorting this out is usually costly.) It is not the judge’s job to understand your family situation, so court orders are not as tailored to particular needs as agreements made by you and your spouse. For many it is a last resort; for others it is at least not a first choice. Generally it is the most expensive option.


A few overall observations, based on my experience:

Make the Right Choice from the Start. The decision on which divorce process option to use is one of the most important decisions that can be made in your life and for your family. Make sure that you find an attorney who is willing to discuss all of the process options in detail with you, and that you educate yourself, looking at all of the necessary considerations before jumping into a litigation.

Consultation. If you’re in doubt, a qualified and experienced matrimonial lawyer can help you sort out which process is likely optimal for you.

Sustainability. People have greater regard for decisions in which they participate. Therefore the consensual processes of mediation and collaboration generally produce more sustainable results than a court process because the parties have no “ownership” in decisions made by the court.

Enforceability. An agreement arrived at in mediation or collaboration and incorporated without merger into a divorce decree is an enforceable court order. It is not different than a court order issued initially by the court in a litigation.

Choice. If possible, you’ll want to choose a process that’s right for you, depending on interpersonal dynamics, cost, urgency, complexity and many other considerations that factor into your situation.