When Litigation Makes More Sense Than Alternative Dispute Resolution

Alternative dispute resolution (ADR) can pave the path to a faster and more amicable divorce, but it’s not ideal in every situation. The following examples highlight the positive role litigation can play in select divorces:

Unilateral Divorce
In an ideal divorce, both spouses agree to end their relationship on relatively friendly terms. But what if one spouse wants to leave and the other hates the idea of breaking up? Extreme emotions follow. Hashing out typical questions—such as who gets the house, how to divide the marital debt, what to do about child visitation over the holidays, etc.—just might not be possible within an ADR framework. Asking the court to step in to make decisions simplifies the discussion.

History of Abuse
If you suffered physical, emotional or sexual abuse while married, an ADR framework—like mediation or collaborative divorce—might not make strategic sense. What if your ex intimidates you or uses aggressive negotiation tactics he employed successfully in the marriage to trample your rights? When there’s a big imbalance of power between spouses, trying for win-win solutions may be asking too much. It poses risks. After all, in mediation, your attorney only plays an advisory role. With an aggressive attorney on your side during litigation, you’re less likely to bow to your ex’s unreasonable demands.

Litigation is a useful tool when compromise is not likely to lead to anything good. For instance, if your ex abused your children, you may be totally uninterested in his desire for custody. Instead, you might want to use the courts to seek emergency temporary custody and, later, permanent primary custody.

Failed Mediation or Collaboration
Some couples enter mediation or collaboration with wonderful intentions, but, despite their best efforts, cannot arrive at a working agreement. Others successfully negotiate some solutions but run aground on a few key issues. Litigation can break the impasse and help you finish the process and move on with your lives.

Complicated Financial Circumstances
For instance, perhaps you and your husband started an internet company, and that venture blossomed into half a dozen other partnerships. How do you identify who owns what and what the individual pieces are worth, especially when you no longer trust each other? Or maybe you co-own properties, one of which is encumbered with a lawsuit looming over an environmental matter? Using ADR can keep these discussions private, but a more formal litigated process might cut the Gordian knot.

Choosing the Appropriate Framework
Many people flinch at the idea of litigation; they fear the process will automatically be riskier, lengthier and more expensive than ADR. That’s not true. Context matters. Sometimes going to court is the simplest/most humane strategy, especially if your relationship is imbalanced or trust is a problem.

Not sure what type of framework is appropriate for your situation? Look to our divorce attorneys for valuable insight into your possible next steps.

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