Divorce Facts

In a divorce there are many issues to consider.

How does custody work?... How much will child support be? What are my rights as to spousal support?... Who will get the house? ... What is the difference between mediation and litigation?

These are questions that have to be considered, though some may not apply to your case. We have a list of issues noted on the right regarding many of these points. Just click and read points that concern you. The difference between Mediation and Litigation and which option might be best for you is discussed below.

Mediation or Litigation

An initial question should be how to proceed with the case. A divorce can be resolved by the standard litigation process (which also includes negotiation between the parties) or by the process known as Mediation, also called Alternative Dispute Resolution or ADR. Here is a thumb nail sketch of both alternatives as well as a discussion of a third choice, collaborative law.

Litigation:Litigation is the most common form of legal process. It is the standard situation where the case is resolved in court. While many parties will have their own attorney, others may choose not to. One party, either with an attorney, or on their own, will begin the process by preparing a Petition for Dissolution, using a form that outlines the basic points. That is filed with the court and then served the other party. That party must then file a Response in order for the process to begin. If they do not, a default may be entered, cutting off their rights. When there are children, the first step is almost always to resolve basic issues such as custody, support and use of the family residence. This is to maintain the status quo until the permanent issues can be resolved. To assist in this process there will be a conference before a magistrate to determine the status of these issues and to inform the parties of the process. Concurrent with this, the parties must each file their financial disclosure statements within the required time limit.  In addition, when there are children involved, each party must attend a parenting session with an approved counselor.

While the process is called litigation, it does not mean that your case has to go to trial. Rather, negotiations will continue through the attorneys or between the husband and wife directly. The fear of a trial is a great impetus towards settlement. If the parties and their attorneys are reasonable, they will collaborate to reach a fair and equitable settlement. On the other hand, if there are disagreements, or if one of the parties is unreasonable, the matter is set on the trial calendar. But before there is a trial, there will be conferences, often with a Judge to resolve all issues. It is only when all else fails that there is a trial. In truth, very few cases ever get to trial. But when they do, all the costs, and particularly the attorney’s fees, will escalate significantly.

Mediation: Mediation is an alternative form of dispute resolution. In mediation, the attorney/mediator does not represent either party. Rather, he or she guides the parties toward a settlement of all of the complex issues. They will all be in the same room and discuss these matters together. The mediator will advise the parties on the law, suggest alternative solutions, and general keep everyone on the right track towards reaching an agreed upon settlement. Once an agreement is reached, the lawyer prepares the Marital Settlement Agreement. After it is signed, the agreement is filed with the court and a Judgment of Dissolution, after it is approved by a Judge, is entered.

Collaborative law: An adjunct of mediation is called a collaborative resolution. It is similar to mediation in that it is a situation where the parties agree beforehand that they will negotiate a settlement. They each retain a lawyer and the four of them, without the assistance of a mediator. If no agreement is reached, then the parties must get new lawyers and start over. In the litigation process, if there is no agreement, the lawyers will continue to represent the clients.

Negotiations: As noted, most cases are resolved through negotiations. That is, one party may want the house and the other party certain assets and they negotiate an agreement. This is the result in the vast majority of cases, even in the litigation process. In the example here, whether the house is sold or not, other assets divided, or some unusual but appropriate division occurs depends on the ability of the attorneys to analyze the situation and the parties to agree on it. Mr. Borof's long experience has enabled him to structure appropriate and worthwhile settlements in cases. In fact, he is often hired by parties who had been unsuccessful in working out a resolution with another attorney and wish to have a fresh approach. His expertise is such that he is able to structure settlements that make sense in the economic circumstances of the parties and accommodates their respective needs.

Conclusion

This is but a thumbnail sketch of the litigation and mediation process. Unlike many other areas of law, family law cases are driven by the stress and emotions of the litigants. While there are behavioral factors that are consistent in all cases, every case is also unique. More importantly, it is the client's only divorce case and that makes it unique to him or her. Mr. Borof understands that and works with his clients to get them through the process in a manner which is best for them. He will talk with his clients and make sure that they understand the process. Quite often, that means hearing bad news as well as good news. But he makes sure that his clients understand their positions, even if it is not as good as they might have hoped. As a result, most of their cases are resolved in a satisfactory manner.