Approximately 90 percent of divorces are settled around the word without going to court. In New Mexico, divorce mediation has become an increasingly important part of settling cases at lower cost and emotional stress. However, there may be limited times when litigation should be considered as a serious option.
First, going to court is available if mediation fails to reach an agreement acceptable to both spouses. Important divorce issues such as child custody and support may remain unresolved and need judicial intervention.
There are also times when there is a significant power imbalance between the parties. For example, one spouse may control all the finances which places the other party at a substantial disadvantage during negotiations.
Unrealistic expectations also restrict settlement. In mediation, parties need to cooperate and rely on logic, problem solving and empathy to resolve disputes. When one of the parties is emotionally-committed to an issue or wishes to punish their ex, settlement may be unobtainable. Mediation may also be challenging where only one spouse wishes to end their marriage.
Concerns over forensic issues such as the other party’s honesty, transparency or willingness to turn over documents and information undermines trust between the parties and the chances for a successful mediation. Courts, however, can compel the production and discovery of evidence.
Other factors are even more serious. Where one of the spouses is engaged in criminal activity, there may be serious consequences for both parties. They each should have legal representation and take protections for their family.
When a spouse’s or family member’s mental condition is a factor, it may be necessary to go to court. A judge has the authority to compel production of mental health records.
Finally, domestic is a serious disqualification. It may never be a subject of negotiation. Furthermore, mediation is physically impossible where one spouse may harm or intimidate their ex.
A spouse should seek prompt legal representation to explore the benefits of mediation and options they may pursue. An attorney can help assure that a spouse follows mediation procedures and fully explores their rights and reasonable options.
Source: The Good Men Project, “When divorce litigation is inevitable,” By Sinta Ebersohn, Oct. 6, 2017