Choosing Divorce Court Over Mediation or Collaborative Divorce

When traditional divorce court may be a better route than divorce mediation or collaborative law.

Divorce courts operate under the same basic rules used by courts that deal with other disputes. Often these rules do not work well in solving divorce disputes divorcing couples do better working out solutions themselves or using mediation or collaborative law. However, in some cases, using traditional divorce court is the best way to go.

Alternatives to Court

Fortunately, there are at least three ways to resolve divorce issues that are usually superior to court.

Working out a solution together. You and your spouse can sit down and reach agreement on how your possessions and debts will be divided, whether one of you will pay the other support and how much and, if you have children, how they are going to be raised. For some couples, reaching a settlement on these issues will be so easy that it can be accomplished in one meeting. For others, it makes sense to keep the stress level down by spreading the task out to several meetings.

Going to mediation. Here, the two of you meet with a neutral person, called a mediator, who helps guide you through the process of reaching an agreement on possessions, debts, support, and child custody. (To learn more about using mediation in divorce, read Nolo's article Divorce Mediation FAQ.)

Using collaborative law. You and your spouse each choose an attorney who is specially trained in collaborative law, a new and growing method of divorcing. The process is based upon a written pledge from both spouses to reach an agreement on the terms of their divorce without going to court. They agree that if either party breaks that agreement and insists on a court proceeding, both attorneys must withdraw from the case and the spouses must hire new lawyers and start over again. (To learn more about using collaborative law in divorce, read Nolo's article Will Collaborative Divorce Work For You?)

When Court is the Best Option

All of these options are superior to court in most circumstances. In the messiness of real life, however, there are situations in which the sane alternatives offered here may not work. By personality or circumstance, some people just seem doomed to divorce the ugly way in court. A number of those likely scenarios are described below.

Combative Counsel Is Involved

It can be difficult to resolve your divorce out of court if one spouse has fallen under the spell of an aggressive lawyer sometimes known as "a bomber" who has convinced the spouse that mediation and collaborative law will fail to produce an agreement or will produce an agreement that won't be as good as what a judge would order. Some lawyers of this stripe enjoy telling clients about how much they will enjoy "chewing up" the other spouse on the witness stand.

If your spouse hires a lawyer like this common if your spouse is angry and wants to use the divorce as a way of obtaining revenge you are at high risk of spending loads of expensive, comparatively unproductive time in court.

Your Spouse Is a Bully

It can also be tough to use an alternative to divorce court if your spouse has a history of intimidating and abusing you so that, almost as a matter of self-preservation, you have given up and "lost" almost all of the arguments that have taken place during your marriage.

Attempting to negotiate on your own can be a waste of time in this situation. Your spouse is likely so used to winning all of your arguments that it's likely the only offer of settlement you'll get will be unreasonable, while your spouse refuses to negotiate meaningfully.

There are some skilled mediators who can overcome this hurdle particularly those who have had a lot of experience in the courtroom and therefore can explain to your spouse with some authority what is likely to happen if settlement isn't possible and the case goes to trial.

Unfortunately, however, many seasoned bullies will avoid mediation, fearing that a calm and objective airing of the dispute will cause them to lose the upper hand.

Your Spouse Is Uncommunicative

Some spouses won't cooperate in talking reasonably about the terms of a divorce. If you're facing this type of hesitation, perhaps it's because your spouse hasn't contacted a lawyer yet or, even worse, has found one of the "bomber" lawyers described above.

Some spouses clam up or lash out because they are too angry about the reality of a divorce. Others are too hurt. Some just plain refuse to talk about it at all. And there are those who just want to rant and rave about how ungrateful you are and how they are going to take you to cleaners and so on and so on. The bottom line is that such hurt and angry people refuse to communicate meaningfully.

Your Spouse Is Missing

Obviously, if your spouse has left town, it may be impossible to have a constructive conversation about how to end your marriage. In fact, there are a surprising number of cases in which a spouse claims to be dashing down to the corner to buy a pack of cigarettes but never comes back.

If this, or something like it, is your situation, you probably will eventually be able to obtain a judgment declaring the marriage terminated also called "dissolved" in many states without ever locating your spouse.

Your Spouse Lacks Good Faith

It doesn't happen often, but in some cases, one of the spouses attempts to hide a substantial asset or take some other dishonest action.

Such bad behavior often stems from a spouse who:

• hates the other so much that the wrongdoer will tell any lie or conceal any asset available
• is having an affair with a new lover, especially when that paramour has experience in business and finance
• is so surprised and injured by the idea of a divorce that all revenge is the only goal, or
• is so fixated on acquiring wealth that almost anything goes in service of getting a few more dollars.

If you fall into one of these categories, see Nolo's Essential Guide to Divorce, by Emily Doskow (Nolo), for information on traditional divorce, or look to Nolo's Lawyer Directory to find a lawyer.