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Should I Negotiate or Litigate My Divorce?

Family law writer for the Huffington Post, Caroline Choi, suggests the following considerations in determining whether a negotiated divorce is for you. 

  • Do you and your spouse communicate? If you and your spouse are on talking terms, it is a good sign that you may be able to talk about outstanding issues, especially when it comes to your children and finances.
  • Do you want to minimize attorney's fees and costs? Negotiated divorces save money because you're not spending money on attorneys (in the case of a mediated divorce), or in cases where you and your spouse each have an attorney, these fees can be minimized since your attorney is not spending time on preparation and paperwork for Court.
  • What are your future plans? Are you looking to get married again? In a negotiated divorce, much time can be saved if you and your spouse are on the same page. In protracted litigation, divorce proceedings can be drawn out for years, and in some cases, drawn out for a period longer than you were even married!
  • Do you and your spouse still respect each other? The love and romance may have evaporated, but if the respect is still intact, a negotiated divorce may be a good option. If you and your spouse respect each other, the likelihood of bringing your child into the divorce is minimal and it helps to maintain a harmonious post-divorce friendship.
  • How important is privacy to you? Another thing to consider is how much privacy you require in your divorce. In a litigated divorce, the paperwork you file is an open public record. What that means is any dirty laundry that is aired out in your paperwork can be read and reviewed by any member of the public.

Negotiated divorces will help alleviate the pain and stress of a divorce. However, negotiation is not always an option if your spouse is simply unwilling to participate in the proceedings. In such circumstance, a litigated divorce may be your only option. 

Negotiation of a family law matter is direct discussion of differences between the parties to resolve their disputes.  Negotiation can take place through lawyers or between the parties themselves over a kitchen table (often called the “Kitchen Table” approach) or anywhere the parties choose. 

In settlement, each party usually has a “wish list” of things they would like from the negotiations.  Some items may be more important than others.  As such, each party will negotiate for what is higher on their wish list and is more willing to give up the lower priority items.  In a perfect settlement, both parties get the high-priority items on their lists.

In a contested trial, the court decides which items on the list a party does or does not get.  The court may award a lower-priority item instead of a higher-priority item.  Frequently, in a contested trial, neither party gets what they want.  It is important to note that most divorce cases eventually settle outside of court.  

While a settlement is no guarantee that the future relationship of the parties will be amicable, a contested trial is guaranteed to be detrimental to the relationship.  The ultimate result is likely to be generally unsatisfactory to both parties, and at the end of the trial animosity between the parties is usually more entrenched.

Negotiation Between the Attorneys

One party may be represented by counsel or both parties may have attorney representation. 

  1. Both parties have attorneys:

    In this scenario, each party is represented by his or her own attorney.  The attorneys work together, through settlement negotiations, to reach amicable decisions without ever meeting in a courtroom.

  2. Only one party has an attorney:

    The parties will negotiate amongst themselves.  The attorney then drafts the agreement representing the parties’ decisions in negotiations.

Negotiation Between the Parties

The parties can negotiate on their own or with assistance from another person or entity. An attorney can then prepare an agreement representing the parties’ decisions.  It is always recommended that each party speak with independent counsel for advice to learn about their legal rights and obligations before signing any agreement. 

Things to keep in mind during negotiation

  • Keep your kids out of it: Don't talk to your kids about the divorce. This includes venting and criticizing the other parent to your child. Don't let your kids read legal paperwork or have it lying around the house for them to accidentally find. In fact, you might try saying a few kind words about the other parent. Kindness is a good thing.
  • A little compromise goes a long way: You might be surprised that when you take a few steps towards compromise, your spouse may be willing to meet you, even if it's only a little bit. Divorce is a process, and one little step still means that you're moving one step further towards your goal.
  • Reach out and talk things out: While this may not always be a realistic option (such as in Protective Order cases), it may be something to consider if you want to move from a litigated divorce to a negotiated one.
  • Try and understand your spouse's point of view: Take one minute to consider your spouse's point of view. Your spouse may be proposing something reasonable. So, taking the time to understand their point of view, may help alleviate the pressure.