Negotiated Divorce vs. Litigation: Choosing the Right Path for Your Situation
In an ideal world, getting a divorce would be an easy process. With roughly half of all marriages ending in divorce, you would think that calling it quits would be a lot easier than it is.
Well, it is not. Even in a collaborative, negotiated divorce, the stress involved with going from married to single can be overwhelming. And not all marriages are collaborative. Sometimes they are downright nasty, requiring litigation.
Going to court is beyond stressful. Having to fight over your divorce in front of a judge, someone who is a complete stranger, can be too much to bear. But sometimes it is the only way to move your divorce along when your spouse does not want to play fair.
Negotiation works for a lot of divorces, but sometimes it is not enough. Should you try to work out the divorce through mediation, or should you just go to court and have a judge decide on everything?
What works for one couple may not work for another. There is no cookie-cutter approach to divorce. What is the right path for your situation? Here are some considerations when choosing between a negotiated divorce and litigation.
Comparing Time, Money, Stress, and Outcomes
Divorces do not happen overnight, but when you choose a negotiated divorce, you can cut down on the time it takes to finalize. In California, there is a mandatory waiting period of six months, but many divorces take a year or longer to finalize because the parties refuse to negotiate and end up going to court.
If this describes your situation, then mediation may not be a good idea. Instead of wasting time and money trying to negotiate with your spouse, you may want to focus on resolving your issues in court.
As for money, going to court is the more costly option. Litigation means court costs and lawyer fees, both of which can add up quickly. A divorce trial can cost mid to high five figures, while mediation may cost a few thousand dollars. However, when a lot of money or assets are involved, going to court may give you peace of mind. When dealing with high-value assets, business ownership, or concerns about hidden income, a court process may provide stronger tools for discovery and enforcement.
Litigation is also more stressful because it involves multiple court hearings. Details are played out in front of a judge, which can be overwhelming and embarrassing. Court hearings take up a lot of energy. Your lawyer may need information from you at any time of the day, and you are pretty much on call 24/7, which can be exhausting, further exacerbating your stress. This stress can affect your relationships with your children and ex-spouse.
But which option will get you the outcome you want? It depends. If you and your spouse are splitting amicably, mediation can help you negotiate and make decisions based on what you and your spouse want. On the other hand, going to court can help you get what you want if your spouse is uncooperative. If conversations quickly break down or there is ongoing hostility, litigation may be necessary to move things forward.
You may also want to go the court route if your spouse has a history of domestic violence, manipulation, or intimidation. Negotiation may not be appropriate in these cases due to the possibility of unfairness. Litigation can provide legal protection and a more structured environment.
In general, a trial can help you petition for what you want, and you can give evidence to support your case. If you feel as though you have a strong chance of winning and getting what you want, then litigation may be worth the time and cost. An experienced divorce attorney can assess your situation and help you find the best option for you.
Which is Better: Negotiated Divorce or Litigation?
There’s no universally “better” option. Choosing between a negotiated divorce and litigation depends on your situation, goals, and the level of conflict involved.
A negotiated divorce is often the preferred route for many couples. Through methods such as mediation or collaborative law, both parties work together to reach an agreement on key issues, including property division, child custody, and support. This approach is typically faster, less expensive, and more private than going to court. It also gives you more control over the outcome, which can lead to solutions that better fit your family’s needs and reduce tension.
Litigation, on the other hand, becomes necessary when negotiations break down or serious disputes arise. If one spouse is unwilling to cooperate, hiding assets, or if there are concerns involving abuse or power imbalances, going to court may be the only way to ensure a fair result. A judge will make the final decisions, which can provide clarity and enforceability. However, this also means giving up control over the outcome. Litigation is usually more time-consuming, costly, and emotionally draining.
In general, if both spouses are willing to communicate and compromise, negotiation is often the more efficient and less stressful option. But when fairness or safety is at risk, litigation may be the better choice. In fact, it may be the only choice.
Contact Us Today
Ending a marriage is complicated. You and your spouse may be able to negotiate things on your own, or you may need to move toward litigation if things get particularly messy. There is no wrong way to get your divorce finalized.
Arcadia divorce attorney Ashley A. Andrews, APC, works toward healthy resolutions, but we know that sometimes that is not possible. When one or both parties are unwilling to negotiate, count on us to offer expert legal support with a caring touch. To schedule a consultation with our office, fill out the online form or call (626) 346-0114.
This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this post should be acted upon without first consulting with an experienced family law mediator and attorney. Should you have any questions about the content of this post, please arrange a consultation to discuss.