December 10 2015

When To Say “No” to a Divorce Mediator and “Yes” to Litigation

Written by  Kevin J. Handy

Most divorcing couples want to get through the process as quickly and cheaply as possible, which can make mediation seem like the perfect option. Unfortunately, that desire to save time and money sometimes means risking a lot more, including your own welfare. Below are a few situations in which you should say no to a divorce mediator and yes to litigation.

1.         One party controls the finances

When one party controls the finances, one party controls the mediation. That party will be responsible for bringing in all the financial information and disclosing all the marital assets. If you have no idea what your marital estate looks like, then you will have no idea whether all assets are disclosed. You could end up entering into an agreement where you get less than you would get in court.

With litigation, you have the advantage of “discovery.” Discovery is the process through which you gather documentation regarding all the finances of the marital estate. You send your spouse “Interrogatories” and a “Request for Production of Documents,” and he/she has 30 days to give you a full and complete response. If he/she fails to give you everything, or fails to answer you at all, you have the option of taking him/her to court. Additionally, if you suspect all the assets haven’t been disclosed or you find additional accounts, you can do a supplemental discovery request.  

With discovery, you get a full and complete financial picture of the marital estate.   You are more likely to get an equitable division of the estate when you actually know what you have. The downside to this whole process is that it takes time. It takes time to go through the discovery, and it takes time to go through the court if your spouse is unresponsive. However, if your spouse controls the finances, the risk of not doing discovery far outweighs the potential delay.

2.         Complications Arise

Divorce, unfortunately, can get incredibly complicated. Unanticipated situations can arise, such as the need to freeze marital accounts or sell the marital residence.   If one party dissipates marital assets while going through mediation, that mediation is mostly likely going to prove fruitless once the dissipation is known. If one party becomes angry and threatening towards the other, mediation is not going to work out. Those are situations in which litigation is necessary.

With divorce litigation, you have the opportunity to file for “special relief.” Special relief includes a broad range of issues. For example, if your spouse is threatening and intimidating while you still live together, you may want to file for exclusive possession of the marital residence, so that you can feel safe in your own home. If you’re concerned that your spouse may spend marital assets on a new girlfriend, or a new house, or anything else, you may want to freeze the marital accounts. At such times, litigation is the only answer. A divorce mediator isn’t going to be able to obtain an agreement in which one party vacates the marital residence. If the parties are still living together, then, most likely, neither will want to move out. Therefore, court is the only option. A mediator isn’t going to be able to mediate an agreement freezing the marital accounts, as it’s unlikely both parties would agree. Again, court is the only option.

If you think there is a chance that your spouse may dissipate marital assets, become abusive, prevent the sale of the marital residence, or anything else that could be disruptive to the process or harmful to you, litigation will more effectively protect your interests and resolve the dispute.

3.         Too Much Animosity

If you and your spouse are so angry with each other that you can’t sit in the same room, you may want to reconsider the possibility of mediation. When there is too much animosity, the parties just want to hurt each other, and mediation is not productive. Litigation provides the opportunity for each party to obtain counsel. Counsel acts as the go-between for the parties and, perhaps, helps reach an agreeable settlement without much litigation.

Additionally, when anger roils the process, spouses are sometimes motivated to hurt the other however possible.   This could involve emptying a joint bank account. It could involve filing needless petitions. It could involve false allegations about the other spouse, like allegations of abuse or negligent parenting. The desire to hurt the other party is very common, making the need for a litigation attorney even more important. A good attorney can tell you when you should and should not involve the court.

Mediation cannot put a lid on the animosity. However, a good litigation attorney can work with you to determine the best course of action in moving forward on all areas of divorce. A good litigation attorney will be able to tell you when you should file for special relief, and when you should not. A good litigation attorney will be able to tell you that the money you just took from the joint account will be assessed as an advance on equitable distribution. And a good litigation attorney will be a productive go-between for you and your spouse, so as to minimize additional hurt and upset.

Mediation is a useful tool. For various parties, mediation has been wonderful. However, mediation is not the perfect choice for everyone. It is important to know whether it is the best option for you. If you find yourself in any of the above scenarios, contact the experienced litigators at Cooley & Handy, Attorneys at Law, PLLC for a consultation and advice on how to proceed.

By Melanie J. Wender, Esq.

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