Divorce Litigation: When is it necessary and how does it work?

A Guide to Divorce Litigation

Getting divorced is never easy. If you’re facing a high-conflict divorce or are unable to reach agreements with your spouse, divorce litigation might be your only option.

In this guide, we’ll break down your options and help you understand exactly how litigation works (and when it may be necessary).

Let’s get started.

What is Divorce Litigation?

Of all the ways you can get divorced, litigation is the most costly, time-consuming and emotionally draining option there is.

When most people think of divorce litigation, they assume that means going to trial, and having a judge hear your case before ruling on a settlement.  While that is the case, technically, arbitration and a negotiated settlement are also forms of litigation, too.

For purposes of this article, we’ll focus on going to trial in open court as the definition of litigation.

Litigation literally means going to court to enforce your rights.  You are asking a judge to grant you what is legally due to you by ruling on disputes you have with your spouse.

In some cases, the litigation may be limited and focus strictly on clearly defined parts of your divorce, such as child custody or parenting issues.  At other times, litigation may include all aspects of a divorce, with several rulings that are combined to produce a legally binding settlement agreement.

Rarely does one spouse get everything in a divorce trial.  There is often a division in which each side can claim a partial victory on the overall issues that have been ruled upon.

Even though it is costly and emotionally taxing, some spouses actually want to wage a hostile battle with their spouses as a way to punish them for real or imagined offenses.

Just the length of time that litigation takes can be enough punishment.  Because of scheduling, changes to a judge’s schedule and other outside variables, it’s not uncommon for a litigated divorce to go on for a year or more.

Even though you may be knee-deep in a litigated divorce, you do still have the option of trying to work out your differences with your spouse in a negotiated settlement.  In fact, in some cases, the snail-like slow pace that a court trial moves at is sometimes motivation enough to try and resolve your differences outside of court.

Litigation vs. Arbitration

Litigation and arbitration are both forms of litigation.  While they share some commonalities, there are also some distinct differences as well.

Both are forms of contested divorce where the unresolved issues must be decided by a third party.

When referencing litigation, you are generally referring to holding a trial in public court in front of a judge.  The main difference with arbitration is that your case is heard in front of a judge you select, and the trial is held privately, behind closed doors.

Another form of litigation is a negotiated settlement.  At any time in either litigation or arbitration, if both sides can agree on unresolved issues through negotiation and compromise, this is known as a negotiated settlement.  Often, this happens when one or both sides do not like how litigation or arbitration are progressing.

There may be a sense that a spouse is going to lose on a particular issue, or there may be a desire to speed up the process for many possible reasons (i.e. getting remarried, finances, etc.).

Arbitration also assumes that there is still some level of civility and cooperation that exists between both parties.  Although arbitration is binding, it is only successful when both sides agree to some give and take.  Continued communication and trust must also play a role for arbitration to work.

The good news with arbitration is that it costs less than traditional courtroom litigation.  Even though you must pay for an arbitrator (and yes, they aren’t cheap), because you control the scheduling, there are fewer delays, fewer cancellations and fewer hours that attorneys must spend to defend you.

The drawback with arbitration is that decisions can rarely be appealed.  In a vast majority of cases, whatever the arbitrator decides is what you will most likely have to live with.  In fact, you’ll need to sign an agreement to that effect at the outset of the arbitration process.

Trials often leave open the possibility of appeals.  While this gives you more flexibility if you don’t like a ruling, it also prolongs your divorce and keeps the money meter on.

Read More:  What is a Contested Divorce?

Litigation vs. Mediation

The biggest difference between mediation and litigation is that mediation requires mutual agreement. In mediation, no one has the authority to force you to do or agree to anything.

It is a more collaborative form of divorce in which both sides agree to sit down and try and work through their differences with the help of a trained mediator.  In most cases, other outside experts are called in to provide input for things such as a division of assets, child custody, alimony and other key issues.

In some jurisdictions, courts may require couples to go through mediation before bringing their differences into the courtroom for resolution. This usually happens as part of custody disputes.

Because it is not binding, mediation can be a waste of time in some cases because one party may not agree to a proposed solution.  Also, even if you agree during mediation, you do have the right to change your mind before your divorce is finalized.

In some cases, parties do not have to be represented by their own lawyer.  An impartial mediator may suffice.  This is because typically there is a lot less conflict with mediation, or the issues may be very limited in scope.  That also means mediation costs a lot less than litigation because the need for help from a lawyer is cut way down.

Read More:  A Beginner’s Guide to Divorce Mediation

Why you Should Try to Avoid Litigation

Litigation signifies that you have reached the maximum amount of conflict in your divorce.  You may have no other choice but to litigate, but if you can avoid it, you’re generally doing yourself a favor.

Keep in mind that there is a direct correlation between the level of conflict and the cost of your divorce.  The more things you disagree on, and the level of disagreement you have, will translate into more (sometimes whopping!) legal bills.  Your case will be settled, but the only ones who might be happy about it are the attorneys you each retained.

Litigation is also more time-consuming.  Often, it’s difficult to get on a court calendar in a timely fashion, meaning your case can lose steam, and you’ll be stuck on idle for several months at a time.  The longer it takes, the greater the possibility that life events can shift and work against you.

During this time, you’re not able to get remarried.  You’ll also worry about the uncertainty of your finances until a final settlement is put in place.

The strain on you is bad enough, but if you have kids, it will be worse many times over.  Children need routines and stability.  Until your divorce is resolved, that won’t be the case.

Also, when you litigate your divorce in a public court, you lose all of your rights to privacy.  Your divorce records become public records.  And there may be things you would prefer to be kept out of the public realm.  Arbitration affords you this advantage, but litigation does not.

Litigation is also less flexible than other types of divorce.  You are bound by formal court processes and procedures.  All other forms of divorce offer more flexibility and informality.

Finally, when litigation is highly contested, it tends to create its own storm and intensify the amount of conflict that’s already present.  As you can guess, this defeats the process of settling your issues and is more likely to result in both sides digging in their heels to prove a point.

When is Divorce Litigation Necessary?

Despite your best attempts, if both parties don’t agree to cooperate, and your trust is gone, then you’re going to have to do things the hard way.

This isn’t to say that as you get further into the litigation process that one side or both sides won’t see the wisdom of compromise and agree to settle.

But generally, anger and conflict tend to reach a boiling point and people tend to dig in and throw emotional and financial hand grenades at each other by the time litigation becomes the solution.

The good news is that the vast majority of divorces do not make it to litigation.  In fact, about 95% of all cases are settled before a judge has to make a ruling.  Those who are in the 5% may be locked in to a high conflict, high asset, unreasonable, high stakes battle that must be played out in court.

In cases where domestic violence or substance abuse is present, or a spouse commits some form of criminal behavior, it may actually be better to have a judge rule on your divorce and create a public record that can be accessed if any of those issues return.  Often, they do.

A Few Tips to Help you Prepare for Litigation

Every case is different, but here are a few guidelines that apply to all divorce litigation cases:

Be organized.  Don’t approach your case in a haphazard manner.  Know what documents you’ll need and when.  Start this process early.  Decide what goals you want to accomplish and use those as your blueprint.

Listen to what your attorney tells you.  You may not always like it, but an attorney is there to provide a disassociated and unemotional approach to your case.  This is critical because that’s how a judge will decide many of the issues.

Be respectful. If your spouse is a hothead, let them be the one to have a meltdown in court.  Don’t be goaded into unnecessary fights.  If you feel your emotions welling up inside of you, defer to your attorney.  They are the human shield you need to protect you.

Show up to all court dates on time.  You will make a judge angry if you don’t respect their schedule.  Also, when you come to court, dress nice.  If you don’t wear a suit and tie, or a nice dress, at least make the effort to not come in a t-shirt and jeans.  You want to give everyone the perception that you do have your act together.

Limit communication with the other side.  You’re going into battle.  You do not want to let anything slip and give away your game plan.  If any dialog needs to take place, defer to your attorney, always.

Be honest.  Aside from the bad karma you’ll engender, if you get caught, you will be punished.  You could face fines, jail time, or a judge may simply give the other side what they want to penalize you.  Lying is a big no-no, and that includes intentionally hiding evidence or key information, too.

Listen closely.  While you need to be honest, you don’t need to be a blathering fool, either.  Answer questions as they are asked.  Don’t volunteer more than is necessary, unless it benefits you.  Even then, be careful.  When you are done with your answer, simply keep quiet.

Practice your story.  To be effective in court, you’ll need to have a believable story or set of facts to help sway the judge to your point of view.  If you’ve got some bad things going on, try to figure out how to minimize them, or turn them around any way that you can.

Be careful about going on the offensive too much.  That can backfire on you as well unless you have it thoroughly strategized out.

For more help on how to get through a divorce, check out these resources: 

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