In a contested divorce, the parties disagree on some of the legal aspects of their divorce or separation. They can can resolve their disagreements through a number of means and this could involve mediation, negotiation, arbitration, or litigation. Our firm specializes in court litigation and out of court negotiation.
Taking a divorce to court does not necessarily mean that you will pay more in the end. The vast majority of cases do not reach the trial stage in a divorce proceedings. The court process is designed to encourage settlement of issues along the way to trial. There are several “conferences” in which the parties meet with a judge or dispute resolution officer to identify issues in agreement, issues in dispute, to get the ball rolling on financial disclosure obligations, and to promote settlement offers. Additionally, “costs” are awarded along the way to trial and at trial. The court awards costs so that one party pays the other side’s legal fess. The monetary amount of the costs is based on the reasonableness of the settlement offers which are before the court. Hence, the court encourages participants to make and accept reasonable offers to settle. Parties who are unreasonable tend to have large cost awards made against them.
Court is the typical way to resolve issues in dispute in your contested divorce. It offers the most procedural protections, and remains the best approach in highly contested cases.
Alternatives To Court
You may want to start things off with an alternative to court. However, each case is different. Sometimes you want to start things in court first and pursue out of court options afterward.
It can be better to try a non-court means of resolving a divorce before resorting to a court application. Filing a court application as a first point of contact with your former partner can cause problems. It can cause your former partner to feel bitter, affronted, victimized, misunderstood, offended, repulsed, disgusted, targeted, or any negative thing upon being served with a court application before even having a chance to negotiate things more personally. This can cause them to be more disagreeable to negotiate with in the future, more difficult to deal with, and cause them to dig in their heels and fail to compromise. They can drag out the process and this will cost you in both time and money. It is generally in your best interests to resolve things as quickly as possible and as cost-effectively as possible. Sometimes this will mean starting things outside of court. However, there are circumstances in which you should start with a court Application. When one party is unreasonable, overly demanding, nasty, vindictive, or going to cause problems, then starting things in the court may be the best approach. There are consequences to filing for divorce proceedings late into your negotiations. You are then stuck waiting for a slow and overburdened court to schedule your next hearing. Speak with a family lawyer to formulate an approach for your particular circumstances.
Mediation is a nice way to try to work out your contested issues. You usually don’t go to a mediator because you are in agreement. You would usually go when you have a contested divorce and there are issues in disagreement, but you would like to resolve them in as amicable a manner as possible. Many counsel like to encourage parties to mediate parenting issues while dealing with their financial issues in a more litigious process, keeping in mind the best interests of the children. Family lawyers can be involved in a mediation, either by attending and participating at the mediation, or advising you of your legal rights outside of the mediation. An advantage to mediating is that you can choose your mediator and some mediators are lawyers and even former judges.
A contested divorce can be initiated with one lawyer drafting a separation agreement to take to the opposing side’s lawyers for review and approval. Often all issues will be resolved this way. However, sometimes it’s not possible to resolve all issues in a separation agreement in this manner. And therefore lawyers will begin a court proceeding, having at least reduced some of the issues in dispute.
Arbitration is expensive – but unlike judges you can choose your arbitrator and often the timeframes are much more accelerated. Some arbitrators offer a combined mediation-arbitration process so that they first try to mediate issues in dispute and then arbitrate them failing the success of mediation. Arbitration is more expensive as arbitrators are required to provide reasons for their decisions, evaluate evidence, follow certain procedural rules, and take submissions formally similar to a court process. However, you can resolve things in much less time.