When considering divorce clients are usually familiar with going to court
and fighting. More and more clients are learning there are more peaceful
options. These days, during consultations clients ask more about the difference
between “litigation” and “mediation”. Sometimes
after answering their questions I ask, “Do you want to “punish”
or “not to punish” your spouse?” Believe it or not,
there are those spouses who only want to fight. They only see “red”
and nothing is going to change that. But for those open to a non-adversarial
option there is a more positive and peaceful solution – it’s
Both paths, litigation and mediation lead to a divorce, but the intention
and the process are very different.
Which path will you choose?
Under the traditional system, imported from England originally, couples
went to court to obtain a divorce.
Each spouse hires his or her own "advocate," and they engage
in what is normally an adversarial process. The steps can include negotiation
between the attorneys. If or when this is not working, there is always
the threat of "going to court," where a judge will make decisions
about all the issues, including custody and visitation, child support,
spousal support, and the division of property.
The court process is particularly daunting. It includes serving a summons
and complaint, an answer, and exchanging financial information and documents.
This exchange is called "discovery," and it is, in fact, a way
to find out the facts about the parties' finances. It can include
subpoenas served on banks, businesses and third parties. It may also include
applications made to the court for various types of relief, such as temporary
child and spousal support, interim custody, and counsel fees.
Once you get locked into the system, it is extremely hard to find your
way out. It is expensive, time-consuming, and emotionally draining. Ultimately,
it may be the only vehicle for warring couples of a certain ilk. In some
cases I call this the vehicle used to “punish”. This path
is often attractive to spouses who want revenge, enjoy conflict, and seek
to maintain control over the other spouse.
This path to divorce involves working with an unbiased mediator, usually
a lawyer, whose function it is to assist a couple in a peaceful process,
to make decisions together at and arrive at an agreement that is fair
to both. For people who have never experienced it, mediation is surprisingly
and stunningly effective. It is quick, inexpensive, and not adversarial.
It is a three-part process, consisting of the negotiations, the preparation
of an agreement, and preparation and submission of the divorce documents
to a judge for signature.
In the last decade, mediation has become the popular choice of many divorcing
couples, especially millennials. In fact, during the pandemic, while the
courts have been closed, couples have been calling and asking me a lot
It has been particularly difficult for disgruntled couples sheltering in
place to continue in an already unhappy marriage. For some in abusive
relationships, continuing to struggle in the marriage is no longer acceptable-life
is just too short. I have actually had phone consultations with a spouse,
while they were sitting in their closet at home for privacy, answering
their questions about mediation. I have guided many of them on how to
safely discuss divorce with their spouse, and how to introduce mediation
as a positive, less expensive alternative to going to court.
If you are thinking of divorcing and would like to discuss litigation vs.
mediation, call me. We can discuss the details of your marriage and select
the best path for you.
For those of you not quite ready for divorce there are other options, like
a separation or postnuptial agreement.
Call me today and we can discuss the right path for you. My consultations,
which are free, are informative and comprehensive.
During the ongoing COVID-19 Pandemic all our
FREE 1 HOUR CONSULTATIONS are
conveniently conducted virtually by telephone or TeleDivorce by Zoom or Skype to reduce
risk and maintain safety for everyone!
We still have some appointments available for this week.
I look forward to helping you.
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When it comes to your future and that of your family, don’t leave
anything to chance. Call New York Divorce Lawyer Lois M. Brenner, Esq.
to schedule your free consultation. 212.734.1551.
There is no case too difficult or complex for Lois Brenner to handle!!