Find out what it means to litigate your divorce and whether mediation might be a better way to end your marriage.
When you’re about to get divorced, it can seem like you have to make a million decisions, not least of which is the legal process to end the relationship. It used to be that couples would take their divorce to court, but today there are alternatives—the most popular of which is mediation.
What Is a Litigated Divorce?
A divorce is “litigated” when the spouses can’t agree on how to resolve the issues of child support, spousal support, or how to divide property. The process begins with the filing of a Petition for Dissolution of Marriage with the Court system in the Florida county in which the couple resides.
By filing a divorce complaint, the “petitioner” (the filing spouse) is asking that the court decide the outcome of the divorce and officially end the marriage through a particular set of legal procedures. These procedures require the spouses and the court to take specific steps in discovery and provide due dates for completing them. It’s not unusual for it to take a year or more to finalize a litigated divorce.
A fully litigated divorce typically ends after a trial overseen by a family court judge. Although spouses can represent themselves in a litigated divorce, it is important to understand the pitfalls of being unrepresented. Our Jacksonville family lawyers provide experienced advice, argue the facts relevant to your legal position, and can expertly navigate the court system and its complex procedures.
During a litigated divorce, the couple can settle at any time, which results in lower costs and a quicker resolution. But in reality, once they’ve started a litigated divorce, most spouses don’t settle until shortly before trial. Because of the timetable courts must follow, as well as the limited number of family court judges, it’s not unusual for it to take a year or more to finalize a litigated divorce.
What Is Divorce Mediation?
Divorce Mediation is a method of “alternative dispute resolution” (ADR). Its goal is to help couples settle their issues without lengthy and costly court battles. Mediation usually occurs in a relatively informal and non-confrontational setting, such as a mediator’s office or even online.
Mediators don’t decide the outcome of the divorce. Rather, they attempt to help the couple reach a compromise and then typically create a marital settlement agreement. Once the couples reach this agreement, they have nearly finalized what’s become an uncontested divorce.
The mediation process can be as short as one session, or last a few weeks or more. How long divorce mediation takes depends on:
- the number of topics to be addressed
- how complex those topics are (for example, if there’s a lot of property to divide)
- the time between sessions, and
- the cooperation level of the spouses.
Mediation provides couples with much more control of the process than they’d have in a litigated divorce, particularly when it comes to pace and scheduling.
What’s the Difference Between a Divorce Mediator and a Judge?
First and foremost, a mediator is not a decision maker. These individuals help assist lawyers and their clients in reaching a mutual decision on each issue in the divorce process. If the parties can’t agree, the mediation ends in a impasse and heads into a courtroom for a Judge to make a ruling based on the evidence presented by the attorneys and their clients. Mediators have no power to decide an issue or force a party to agree.
Divorce mediators can have many different backgrounds: They can be financial experts like accountants, or professionals like psychologists, social workers, or marriage and family therapists (MFTs). They can also be lawyers. Even though many mediators are also lawyers, it’s the function they serve that makes them one or the other—a mediator can’t also act as a lawyer for either of the spouses. That is why you need a advocate to present your position at mediation, and evaluate any offers to settle presented by your spouse.
Lawyers who serve as divorce mediators shed their usual advocate role and act instead as unbiased guides whose job is to lead the spouses toward a resolution of their issues. All mediators—including those who happen to be lawyers—must remain neutral in discussions and not give legal advice to either of the spouses. They are most helpful in acting as a go-between to allow the parties to present their position without face to face confrontation.
Judges are decision makers and the trier of facts in Florida divorce proceedings. In a formal divorce trial, evidence is presented to the Court in compliance with the rules of discovery and court procedure. Once each party has argued their position, the ultimate decision on each issue will be made by the Judge. The Final Order issued will make findings of the facts the Court relied on to make a decision, as well as the actions each party must take in compliance with the Order.
What Happens After Successful Divorce Mediation?
A mediator can’t formally end your marriage—only a judge can. Even when your mediation is successful, your lawyer will take a few more steps to finalize your divorce. After you’ve completed mediation and have a marital settlement agreement, a court will review the settlement agreement and issue a final divorce decree.
Having to submit a marital settlement agreement to a court shouldn’t factor into the decision of whether to mediate or litigate. No matter what, a court will have to issue the final divorce decree. If you can file a martial settlement agreement as the result of a successful mediation, the court can finalize your divorce much faster than it would take to litigate the case to the end.
What’s the Cost Difference Between Divorce Mediation and Litigation?
You’ll have to pay court filing fees in litigated and mediated divorces. But beyond that relatively minor expense, the cost of litigating a divorce is usually much higher than the cost of mediating.
In mediation, the main expense is the mediator’s fee, which the spouses normally split. Mediation rates can vary, but are typically charged as an hourly rate. Therefore, it is essential that you and your attorney formulate a mediation strategy on the divorce issues to resolve so that the time spent negotiating with your spouse is fast and effective. At your pre-mediation conference, our attorney and paralegal team will assist you in the preparation of the evidence needed to support your position and to convince your spouse that agreeing to a settlement is in their best interest.
In a litigated divorce, your lawyer will conduct discovery and assist you in preparing the mandatory disclosures required by the Court. Depositions, expert witness testimony, accounting forensics, and child custody expert evaluations are just a few of the formal discovery steps that will be necessary to conduct a family law trial. As with any litigation, the end result can be unpredictable once it is placed in the hands of the Judge to decide.
The Most Expensive Part of the Divorce Process: Litigating Contested Issues
Mediation typically costs so much less than litigation because of its informal nature. The parties can hash-out areas of disagreement, without the need to present formal evidence in compliance with complex court rules. The time frames surrounding the discovery process, as well as the time needed to properly prepare evidence for the Court, account for the majority of this increased expense.
In addition to the time your attorney and paralegal must spend preparing your case for trial, you will likely need other professionals to assist in the process, such as an appraiser to assess the value of property or an actuary to compute the distributable amount of a pension plan. Each party will have competing expert witnesses and evidence, which means additional expense and time in discovery.
Who Should Consider Divorce Mediation?
For couples looking to minimize costs, mediation is a practical option. Indeed, for most people it’s worth weighing the pros and cons of mediation. For divorce mediation to be successful, both spouses must be committed to the process and the goal. A willingness to compromise is essential. If you or your spouse is already gearing up for an all-out battle, it’s less likely that mediating your divorce will work.
Mediation also requires a level playing field. If either spouse has the upper hand, in one form or another, mediation often won’t work. For example, divorces where there is ongoing domestic abuse typically shouldn’t be mediated—rather, the victim needs a professional advocate. And narcissistic spouses who believe they can’t be wrong about anything will usually sink any chance of a productive mediation.
Likewise, if a spouse is deceitful, mediation isn’t viable. For instance, mediation is probably a nonstarter where a spouse is suspected of hiding assets. You can’t reach a meaningful settlement unless both participants are truthful about all issues involved, including everything they own. In cases like these, our team of family law attorneys, paralegals and experts will conduct the necessary discovery to create a full and complete portfolio of evidence for the Court.
On the other hand, mediation can be an option even if you think you won’t be able to resolve all the issues in your divorce. You might still be able to resolve some of the issues, which will narrow down the topics you’ll need to litigate, saving you money and shortening the amount of time you’ll need to spend in court.
If you would like to speak to a family lawyer to discuss how we can we guide you through the divorce process, we can be reached 24 hours a day, 7 days a week at 904-358-3300
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