The Post-Divorce-Parenting Glossary

• What is divorce litigation?
• What issues are typically argued via divorce litigation?
• How does divorce litigation compare to divorce mediation?
• How does divorce litigation compare to divorce arbitration?
• How can divorcing people reduce the cost of divorce litigation?
• Who typically wins a litigated child custody case?
• What are the advantages of divorce litigation over alternative dispute resolution methods?

What is divorce litigation?

Divorce litigation is one of the dispute resolution methods open to divorcing people, where the parties will have the issues of the dispute settled in a family court.  Divorce litigation is not the only form of dispute resolution available to divorcing parties.  Other alternative forms of dispute resolution include divorce mediation and divorce arbitration.

What issues are typically argued via divorce litigation?

Most divorced people who end up litigating are those in a very high-conflict divorce.  The issues that typically end up leading to litigation are spousal support, division of property, child custody, and child support.

In a contested divorce that has failed to resolve disputed issues via mediation or arbitration, litigation is often used to finalize the divorce deccree.

How does divorce litigation compare to divorce mediation?

Divorce litigation is the most conflictual and expensive form of dispute resolution available to divorcing or divorced people.  Mediation is a much better option if the parties are in an amicable relationship and are willing to compromise.  In divorce mediation, a mediator will attempt to help each party compromise on issues, where they may have otherwise had an impasse.

Mediation is much less expensive than litigation.  Depending on the arrangement, the parties do not necessarily have to have their own lawyer, although they can each have representation if they wish.  Because mediation is less conflictual, the amount of time where the parties need the assistance of a lawyer is cut down significantly.

Conversely, litigation can be extremely expensive for several reasons.  Because each conflictual issue often leads to more conflict, litigated divorce cases typically last for a much longer time than mediated divorces because of perpetuating arguments between parties.  Also, because of court schedules, a significant amount of time is spent waiting for a case to be called.  The parties will be paying their attorneys while simply waiting for the case to be called when in court for the day.  Often, the court will hear the case and then recess until more information is gathered, which only increases the time and expense of the entire process.

Generally speaking, divorcing people should mediate if possible.  If unable to mediate, arbitration is another option available that has several advantages over litigation.

How does divorce litigation compare to divorce arbitration?

Divorce arbitration is a dispute resolution method where the parties agree on and hire a person (called an arbitrator) to hear and decide on the case in private.  Compared to litigation, arbitration has some similarities, but important differences, as well.

Divorce litigation is more expensive than divorce arbitration.  The reasons that litigation costs more stems primarily from increased conflict, the possibility of appealing decisions, and the wasted time associated with going to court.   To understand each of these reasons, it is necessary to understand how both arbitration and litigation work.

If a divorce case or child custody case is litigated, the parties are likely not able discuss matters amongst themselves with each other in an amicable manner.  Litigation is typically the last resort for parties to have disputes resolved in contested divorces.  Parties who are litigating typically begin the litigation process in high conflict, and the litigation environment only serves to increase that conflict.  There is a strong correlation between conflict and cost.  The more conflict that a divorcing couple experiences during a divorce, the more expensive it tends to be.

Litigation leads to a decision from the family court about the issues surrounding the case; however, if either party is not happy with the decision that the court ordered, they can appeal the decision.  This increases the cost of the divorce litigation case.  This is different than an arbitrated case.  The decision made by an arbitrator cannot be appealed, and while this may tend to scare people away from arbitration, the reality is it tends to lower cost and conflict over time.  Once the possibility of changing a decision is extinguished, the conflict tends to subside as parties get used to the situation.

Litigation also involves parties abiding by a schedule set by a court.  Court schedules are notoriously drawn out and involve a lot of wasted time.  If a party has a court hearing on a given day, the parties must arrange their work schedules to be in court on that day, which likely results in lost income.  If the case is at the end of the day and lawyers must sit at the court house until the case is heard, each party will be paying their attorney for the entire day.  Conversely, arbitration is scheduled in a way that works for each party.  Each party can weigh in on when the case will be heard, and there is no waiting around for a case to be heard because it will happen at the scheduled time.

Divorce litigation also differs from arbitration in that litigation is public, while arbitration is private.  This can become very important if parities have issues that they do not wish make public.  For example, if one of the parties had unreported income and the case was litigated, a judge is obligated by law to report the unreported income to the IRS.  In arbitration, this does not happen.

Divorce litigation obviously involves a court room.  It is very formal and intimidating setting that can make parties feel as if they are not allowed to speak up about certain things.  Conversely, arbitration is informal and typically occurs in an attorney's conference room.  Parties can agree on rules to be followed, and the entire process is much more comfortable for all involved.

How can divorcing people reduce the cost of divorce litigation?

In seeking ways to avoid excessive expenses associated with divorce litigation, parties should first attempt to reduce the number of issues that require litigation.  Consider approaching divorce or child custody issues from a tiered perspective.

Tier 1:  Attempt to settle issues between each other without third-party assistance.

Divorced parents especially need to be able to work out differences as they attempt to raise their children from different households.  People who divorce or separate without children are often able to part ways without having to see or contact each other again.  Parents, however, must remain in contact while their children are growing up.  If divorced or separated parents are unable to resolve issues with each other, they risk subjecting their children to a high-conflict parenting relationship, which leads to a myriad of negative psychological effects on the children, and the conflict also leads to increased expenses associated with resolving the disputes.

Tier 2:  Use mediation.

For any disputes that cannot be resolved via discussions between the parties, consider mediation as the next best step.  A mediation clause in a divorce decree can force parties to mediate their disputes before attempting to go to court.  For example, if two parents are at odds about an issue with a visitation schedule and cannot agree on how to modify it to fit their needs, mediation is an option if both parents are willing to accept the results that come from mediation.

Mediation is not binding, and because of this, mediation can sometimes lead to time being wasted in resolving a dispute.  For example, if parties agree on the outcome of mediation when the mediation ends, nothing prevents either party from simply changing their mind.  For this reason, a binding dispute resolution mechanism is necessary to deter litigation, if possible.

Tier 3: Use arbitration when mediation fails.

An arbitration clause in the divorce decree can be used to prevent parties from immediately going to court for disputes that have failed to be resolved via mediation.  Because a decision made by an arbitrator is binding, the parties cannot appeal the arbitrator's decision, with only a few exceptions.

Typically, an arbitrator's decision can only be appealed for issues such as scope, corruption, fraud, undisclosed conflict of interests, misconduct, exceeding their scope and powers, or failing to follow procedures set in the beginning of arbitration.

Tier 4:  Use litigation as a last resort.

If arbitration fails for any reason, litigation is the last resort that should be used to resolve a dispute.  Arbitration can fail if one party is completely uncooperative or unavailable.  For example, in the case of parental kidnapping, the parent who took the child is not available for arbitration.  Litigation is necessary in such a case.

Parents can also lower costs related to post-divorce parenting by simply finding ways to keep conflict low.  Parents who focus on a child-centered divorce and are able to co-parent are likely to experience very low litigation expenses.  Even parents with higher conflict can be child-centered.  Parallel parenting is a term used to describe how parents who are considered high-conflict, can still focus on putting their children first and avoid conflict associated with raising their children.

Who typically wins a litigated child custody case?

Courts are obligated to follow the best interest of the child standard when evaluating and deciding on a child custody dispute.  In the past, women were assumed be the best choice for having child custody because of an assumption embedded in family law called the tender years doctrine.  The tender years doctrine assumed that children, especially young children, adjust better if the mother has custody of the children.  The tender years doctrine is now obsolete, and the best interest standard is the new standard that courts follow when making child custody decisions.

Still, in child custody cases that do go to court, mothers are more likely to be awarded sole custody than fathers are.  As of the mid 1990's women were four times more likely to get custody of a child when the case went to court. ¹  While some father's rights advocates assume that the reason for this disparity is "bias", other reasons exist.  One of the reasons has to do with a societal norm.  When parents are married, it is common for the mother to assume the role of primary caregiver.  They are more likely to stay at home while the father works and supports the family financially.  In a divorce, this "history" is often used as the basis for how judges will assume post-divorce parenting life will be.  Right or wrong, fathers often damage their chances of getting sole custody or joint custody of their children in a divorce because of the family structure that existed while married.

Another reason that women tend to get custody more than men may be because of who is more likely to initiated the divorce.  According to AARP, "Among women, 66 percent report that they asked for the divorce, while only 41 percent of men say they did. Conversely, 39 percent of men say their spouses asked for the divorce, and 21 percent of women report the same."² 

The initiator has likely already had discussions with an attorney, and once they have their strategy on winning child custody planned, they typically serve papers to their spouse.  This situation gives an unfair advantage to the one who begins the divorce process.  The other party may be in the early stages of the grieving process and attempting to save the marriage, while the initiator has already taken the children and is establishing a new status quo for the children's lives after the divorce.

What are the advantages of divorce litigation over alternative dispute resolution methods?

One might not consider that there may be any advantage to litigating a divorce or child custody case compared to other forms of dispute resolution.  After all, a case that is litigated typically means the parties have completely failed to resolve their conflict in a more amicable method.  But litigation does have its place in family law, and while it should be a last resort, litigation offers a few points that may make it necessary.

If either party is so opposed to discussing issues that they cannot even agree on rules for arbitration, litigation may be necessary to resolve a divorce dispute or child custody dispute.  Mediation is virtually impossible if parties are in extreme conflict, and even arbitration requires some incentive for parties to want to resolve the case.

Arbitration also only works if the parties are able to agree on a time and place for the arbitration meeting.  If one party avoids this, litigation may be necessary to resolve the dispute.



Sources

1.  "The Divorce Experience: A Study of Divorce at Midlife and Beyond." AARP.org. N.p., n.d. Web. <http://assets.aarp.org/rgcenter/general/divorce.pdf>.

2.  http://divorcepeers.com. "Divorce Peers." Divorce Peers. N.p., n.d. Web. 13 Nov. 2013.

 

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