Litigation Vs Mediation

Litigation Vs Mediation

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A divorce is never an easy process, from making the initial decision to signing the final decree, it’s a difficult journey. But neither spouse has to remain along for the ride in their divorce process. Instead, they can choose to take the wheel by deciding on mediation rather than litigating the divorce in court. When a divorce case goes to court, a judge makes the final decisions on all aspects of the divorce from child custody to the division and distribution of the spouse’s marital assets. By choosing mediation, you and your spouse keep control of the process and craft your agreements on divorce terms. However, if you and your spouse cannot agree on mutually acceptable terms or you have serious reasons for disputing your spouse’s right to shared custody, your case may require litigation to reach the outcome you want for your divorce.

Before you move forward on a divorce in Colorado, it’s important to understand your options, including choosing mediation or litigation.

Litigation Vs Mediation

What Issues Are Decided During a Divorce in Colorado?

All divorcing spouses are subject to a judge’s orders after the divorce. How the judge reaches those orders may be up to the spouses. Either both spouses draft a settlement agreement together with their lawyers and present it to a judge to sign into binding orders, or they litigate the case in court with both spouses presenting their sides of each dispute before the judge to decide. The judge creates the final terms of the divorce and signs them into binding orders. The terms of the divorce that must be laid out during the process include the following:

  • Child custody and parenting schedule
  • Child support
  • Division and distribution of marital assets
  • Spousal support

In some cases, retention of the family home is another aspect of the divorce that spouses must either decide between themselves or leave for a judge to decide.

Why Choose Mediation for a Colorado Divorce?

Choosing mediation has many advantages in a divorce. Typically, one or both spouses’ Denver family law lawyers set up one or more appointments with a professional mediator. A mediator is an expert on Colorado divorce laws. In mediation, they become an impartial third party who helps the divorcing spouses to communicate and compromise in a safe setting, tackling each disputed issue with a resolution-oriented approach. A mediator often has innovative solutions to resolve disputes that the spouses might not have thought of on their own. A mediator imparts their expert knowledge of the state’s calculations for child support, helps parents understand the state’s standards of “the best interests of the child” in their child custody schedule, and interprets Colorado’s laws regarding the retention of separate assets and the division of marital assets.

By choosing one or more mediation sessions to resolve disputes spouses enjoy the following advantages:

  • They can reach resolutions for their disputed divorce terms in a safe, neutral environment
  • They have access to solutions they might otherwise have never considered
  • Mediation is much less expensive than litigation in court
  • Choosing mediation over a court battle is a far less expensive option
  • Mediation resolves issues much faster than court litigation
  • Mediation remains private but all matters argued in court become a part of the public record
  • It helps facilitate communication and compromise which leaves both spouses better prepared to communicate effectively post-divorce when they have to discuss their children or meet to exchange children

Mediation helps put divorcing spouses on a better path forward compared to battling out their issues in an adversarial process in divorce court. Once divorcing spouses reach agreements on the terms of their divorce, their attorneys present the agreement to the court in their jurisdiction. In the vast majority of cases, a judge simply signs off on the agreement unless they suspect it was signed under duress or one or more terms of the divorce are grossly unfair to one party.

Why Choose Litigation Over Mediation?

Mediation is a wise choice in many divorces, but it isn’t a viable option for all divorcing spouses. For example, if one spouse believes their children are in danger in the other spouse’s custody, no amount of mediation will resolve the issue. Litigation may be the only way to present evidence to a judge to seek the outcome the spouse requires in situations of domestic violence, one spouse’s addiction, or other untenable circumstances. 

There are other circumstances in which litigation may be the best option including the following:

  • If you need subpoena power because a spouse won’t willingly produce information
  • A court has options for discipline such as sanctions and contempt of court charges if one spouse engages in aggressive or resistant behaviors
  • If you have a dispute with your spouse that cannot be resolved despite attempts at negotiation and mediation

Litigation may not be the first choice for divorcing spouses and nobody wants to have to appear in court, but some circumstances make a divorce trial necessary. Litigation doesn’t always mean the entire case must be decided in court. Some spouses return to mediation and settle out of court or resolve some issues through mediation and litigate others in court.

During divorce litigation, each spouse’s Denver divorce attorney presents their client’s case through evidence and testimony and advocates their client’s position before the judge. Once the judge decides, they issue a final divorce decree with binding orders for the distribution of marital assets, child custody, child support, and spousal support.