The Difference Between Negotiated, Litigated And Collaborative Divorce

Unfortunately, many marriages in the US end in divorce. In fact, the American Psychological Association estimates that anywhere from 40 to 50 percent of couples divorce (
Naturally, with all of the divorces that happen every year, including in New Mexico, the approaches have evolved. These days, there are three general categories a divorce may fall under: negotiated, litigated and collaborative. While there are variations in each category, learning more about these approaches can help inform your decision as you consider your options.

The negotiated divorce

In a negotiated divorce, the parties can represent themselves or hire an attorney.  The parties or the attorneys work together to negotiate the division of assets and liabilities, child custody and timesharing.  After an agreement is reached, the agreements are written up and turned in to the Court.  While this can be an attractive option because it does lower costs, a divorce done this way can still be contested and both parties may still find themselves in court.
Generally, a negotiated divorce is best suited for people who have the ability to work together to come to a resolution with minimal conflict. This type of divorce gives the parties the most control over the outcomes of the divorce and their lives moving forward. Decisions made in a negotiated case, with the final approval of the court are binding.

The litigated divorce

A litigated divorce is probably what most people view as the typical divorce case. Both spouses are actively using the court to go through the divorce process. This type of divorce may be needed when the spouses can’t come to any agreement on the major issues, such as child support, child custody and the division of property.
Even if a divorce is litigated, that doesn’t mean the case will end with a trial and a judge’s decision. It just means that the court is more involved as the case progresses. In many cases, the spouses reach a settlement agreement without going through a trial. The court usually orders the spouses to attend a settlement facilitation to encourage settlement. During litigated divorces, the courts issue temporary orders regarding certain issues, such as custody and the payment of bills while the divorce is pending. If a litigated divorce goes to trial, the judge will have the power to make many important decisions, including child and support issues.

The collaborative divorce

When the collaborative divorce approach is used, both spouses work together to reach an agreement without having to go to court. In this type of divorce, both spouses have their own attorneys and will also use other professionals, such as an accountant, for advice.
This divorce approach calls for transparency between everyone involved, and it can be less expensive than a litigated divorce if both spouses can reach an agreement. Rather than go to court, the parties, their attorneys and the professionals attend a series of meetings where the details of the divorce are worked out.  If the spouses are unable to come to an agreement both attorneys must withdraw and new attorneys must be retained to litigate the divorce. This means if the spouses are unable to agree, the parties will have to start the divorce process all over again.
A useful tool for all types of divorce is mediation. The spouses use a third party—someone neutral—to help them negotiate a settlement. Each spouse can work with his or her own attorney so all their rights and obligations are fully understood. While the mediators can’t give anyone advice, they are trained professionals who can assist the parties in coming to agreement.   At any stage in a divorce, the parties can opt to mediate an issue.  As with the negotiated divorce, resolving issues through mediation gives the parties more control over the outcomes of their divorce.
If you’re seeking a divorce, you have options. Speak to an experienced family law attorney today to help you make the best choice for your situation.