Divorce Handbook
2 ITS YOUR DAY
Litigate
or
Mediate?
Divorce Handbook
Its Your Day Mediations are intended to empower and educate. Handbook 1: A Relational Approach to Conflict Handbook 2: Stop and Think: Litigate or Mediate Handbook 3: Coparenting 101 Understanding Your Parenting Plan
Divorce Handbook
The Top Four – Things You Need to Know 1. How much is my divorce going to cost? A contested divorce in the State of Texas on average costs an individual a total of $23,000.00. 2. How long is my divorce going to take? A contested divorce in the State of Texas will typically take at least 13 months, from date of filing to date of divorce. 3. Are there options to avoid court? Absolutely, you have the option to litigate, mediate or collaborate. You need to understand your options before starting your divorce. 4. Will my case go to trial? Typically, cases are referred to mediation PRIOR to being set for trial. Cases that are referred to mediation have a 90% chance of reaching a successful conclusion.
Divorce Handbook
Is there a choice in how I divorce? You have the ability to choose how you will divorce. You can simply reach an agreement, you can litigate, mediate or collaborate. Each choice carries with it different short and long term benefits. Each choice carries with its own separate set of challenges.
When Should I choose litigation? Its important to remember that the original purpose of litigation centuries ago was to provide a manner and means by which a wronged person can seek relief in a court of law. Litigation allows for parties to seek final resolution of their dispute and to allow parties the ability to peacefully part ways. Historically, divorce cases had to fit within the parameters of the litigation model. Why? Because it was the only model in town. Mediation and collaborative divorces started about a few decades ago. So, while litigation is the more familiar choice there are clearly alternatives to the divorce process. The options you have in your divorce are different than the options of your parents, grandparents, aunts or uncles. Easy pick: It’s easy to see why many pick litigation as their initial choice to resolve their divorce. Litigation allows places control of the process in the hands of an attorney who is charged with advocating for your rights. L So is litigation the wrong choice? Not necessarily. Litigation may be your only choice. In saying that it’s important that litigation is your BEST choice. Your choice, after all, will carry short term and long term effects.
Litigation may be necessary when there are no other options to resolve your dispute. There may be family violence, emergencies, fraud, misrepresentations or other wrongful conduct that requires a court’s intervention. Litigation will mean having the contested issues in your case decided by a trial judge who will make rulings based upon the evidence of the parties and argument of counsel.
Divorce Handbook
Litigate or Mediate You need to empower yourself before you take your next step. Mediate or Litigate. A simple question, but your answer will impact you both in the short and long term.
If Ninety Percent of cases settle at mediation, isn’t it simple to assume I should be mediating, not litigating my divorce. Hurt feelings, anger and mistrust are the key impediments to starting the divorce process through mediation. The divorce process clouds the normal relationship you had with your spouse to the point where you may not even recognize who this person is anymore. The litigation and mediation paths intersect at various times during the divorce process. When is it right to know when to decide?
Assess the Situation Spouse’s need to understand that the choice to litigate or mediate is not only their choice, but it is their spouse’s as well. For example, if you feel that you can successfully communicate with your spouse in a neutral and transparent matter, your choice to mediate at the onset of the divorce may be a wise choice PROVIDED your spouse wants to act in a similar fashion. There may be family violence, emergencies, fraud, misrepresentations or other wrongful conduct that requires a court’s intervention.
Review Costs and Benefits
Divorce Handbook
Costs of Litigation Loss of Control: Litigation will mean having the contested issues in your case decided by a trial judge who will make rulings based upon the evidence of the parties and argument of counsel. Expense: Litigation carries with it great financial and emotional expense. Litigation will impact your happiness, your spouse’s happiness and most importantly, your children’s. End of Relationship: If your goal was to distance yourself from your spouse through litigation. It most likely will be a successful endeavor. If your goal was to co-parent, you will mostly likely find that the litigation process did nothing but frustrate and destroy that opportunity.
Benefits of Litigation You had no other choice: There was no other option. Litigation was needed because there was an emergency, a breach in trust or a bad act. Necessary Evil: It’s Not Ripe Yet: Your spouse may be too angry, you may be too angry to sit down and work through the issues of the day. There may be a lack of trust that makes you feel litigation is necessary. Litigation will provide a better benefit than mediation: You and your lawyer have done the math, reviewed the facts and concluded that litigation will provide better results than if you simply mediated your dispute.
Drawbacks to Mediation You will not be happy about mediation... 1. If you do not prepare for the mediation process, 2. If you are not engaged in the mediation process, 3. If you sit back and allow your attorney and mediator solve your problem.
Benefits to Mediation The Four C’s Of Mediation Control the Outcome Common Sense Approach to the problem Less Conflict Less Cost
Divorce Handbook
Worksheet Why are you here? What relief are you asking in your divorce? What do you want? Are you asking to be awarded primary custody, child support, and/or health insurance for your child? Are you asking to be awarded the marital home, a portion of retirement or alimony? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ ______________________________________________ Have you talked with your spouse about your wish list? If not, why not? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ ______________________________________________
Divorce Handbook
What issues do you and your spouse need to talk about during your divorce? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ Do you believe a choice to litigate your divorce restricts your ability to communicate with your spouse and better manage the issues impacting you and the divorcing family? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ Do you believe the benefits to litigation outweigh its costs? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________
Divorce Handbook
Do you believe that your divorce has to be adversarial? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ Do you believe that you and your spouse need to collaborate and problem solve your way through the divorce process? Why? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ What emotional obstacles, if any, do you think need to be overcome to minimize conflict during this divorce process? _________________________________________________ _________________________________________________ What emotional obstacles, if any, do you think your spouse needs to overcome for you both to work through your issues in this divorce? _________________________________________________ _________________________________________________ _________________________________________________
Divorce Handbook What emotional obstacles do you need to rise above in order to work through the issues with your spouse in this divorce?
_________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ What is your desire to litigate your dispute in open court? _________________________________________________ _________________________________________________ _________________________________________________ What is your need to litigate your disputes in open court? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ Do you think that you will need to communicate with your spouse during and after the divorce? If your answer is yes, what issues do you think that you all need to talk about? ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________
Divorce Handbook
Do you believe that you and your spouse share an ability to problem solve and work through issues in this divorce? __________________________________________________ __________________________________________________ __________________________________________________ _________________________________________________ Do you believe that it would be best to ask for the assistance of a financial or mental health professional? List the help you believe is needed and the reasons why. ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________
Divorce Handbook
What help do you need from these professionals? __________________________________________________ __________________________________________________ __________________________________________________ __________________________________________________ __________________________________________________ ________________________________________________ Are you wanting the professional to advocate for your rights OR provide an independent neutral opinion? _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ ________________________________________________ Have you talked with your spouse about asking the help of third-party professionals? What was her or her opinion? ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________
ITS YOUR DAY MEDIATION
STOP AND THINK LITIGATE OR MEDIATE Matt Sossi mattsossi@bsossi.com
