This month we are continuing our series on using mediation to avoid divorce court backlogs. Today we will talk about how mediation can move couples toward uncontested divorce and why that is often the best way to proceed. First, let’s look at the differences between uncontested and contested divorce:

What is Uncontested Divorce?

If you and your spouse work out all your issues on your own, you can file for an uncontested divorce. This means that you must agree on:

• how you will divide your property and debts, and
• whether one of you will pay alimony to the other, and if so, how much and for how long.

If you have minor children, you must also have:

• a custody agreement with a parenting time plan, and
• an agreement regarding payment of child support.

Once you have agreed on all these things, you can put your terms into a written marital settlement agreement (MSA). After you submit the signed and notarized MSA to the court, the judge will make it a part of the final divorce order and grant the divorce.

What is Contested Divorce?

If you cannot agree on all the above issues, you have a contested divorce. After you file the initial paperwork in a contested divorce, court staff will schedule whatever conferences and other events are necessary to help you resolve the case. This includes things like:

• case management conferences,
• discovery (the formal exchange of documents and information),
• an appearance before the early settlement panel (ESP), and/or
• economic mediation.

Couples with children will generally also have to engage in custody and parenting time mediation and parent education workshops.

In short, there are more court filings and more court appearances in a contested divorce than in an uncontested divorce. Attorneys in contested cases typically handle a lot of communication and negotiation between the spouses. All of this drives up costs. Fortunately, even contested cases rarely go all the way to trial without a settlement. Still, such cases are nearly always more expensive and more time consuming than uncontested cases. A contested divorce usually takes at least several months. The total cost of a contested divorce depends on all the unique circumstances of the case, but high levels of conflict tend to drive costs higher.

How Mediation Can Change Contested Divorce into Uncontested Divorce

If you disagree about one or more issues but wish to avoid becoming entangled in the contested divorce process, you can attend private mediation before filing for divorce. This will give you an opportunity to settle your case before you and your attorneys need to prepare for and attend any court proceedings.

You and your spouse should each consult with a separate attorney before mediation. This will give you a good idea about the soundness of your positions. Knowing what a judge might ultimately decide before you start to negotiate can speed up the process. An attorney can also let you know if there is any legal reason to expedite filing a divorce complaint.

If you succeed in working out your disagreements in mediation, you can submit uncontested divorce papers and an MSA to the court. The judge will make the signed and notarized MSA a part of the final divorce order and grant your divorce.

How to Move to Mediation from Litigation

If you are already embroiled in a contested divorce, you can still switch to mediation, but unless the judge orders you to do so, you and your spouse must agree to the move. Judges and court staff often identify cases as appropriate for mediation, and a judge can generally require parties to attend mediation at any time. If this does not happen, however, and you still wish to try mediation, speak to your spouse. If your spouse agrees, tell your attorneys and they will tell the court.

You can also ask your attorney to raise the possibility of mediation with your spouse’s attorney, if that is mainly the way you have been communicating with your spouse. Your attorney will let you know if there is some reason mediation might not be the best option for you.

If your case is already in the court system and you are interested in mediation but do not have an attorney, a good next step is to consult with an attorney. You can also contact the family division manager for the county in which your case is filed and ask how best to proceed.

While it is possible to switch to mediation at any time before trial, you stand to gain the most by doing so as early as possible. If you are already in litigation, mediation will require little additional preparation. You still need to exchange the same information; mediation just simplifies the process.

If you are concerned about mediation being appropriate in your case, stay tuned. We will be discussing that topic soon. In our next post though, we will talk about the differences between court-ordered mediation and private mediation. Meanwhile, if you are ready to talk to a mediator, contact us today for a consultation.