Litigation is the process by which claims for relief (for example, property distribution, child custody, child support, alimony, and divorce) are presented to the court for determination. In essence, when all else fails and the parties cannot resolve their differences by agreement, our judicial system provides a process in which claims are addressed by a judge and a ruling is entered by the court.
The short answer is because people can’t always agree — or perhaps more accurately, can’t agree until they feel they have hurt the other party sufficiently. Beyond this simplistic answer, there are many times when, unfortunately, a party has no real choice but to litigate. Below are some of the common scenarios which mandate litigation.
The chief benefit of litigation is that you can compel your spouse to act in bringing the issues to a resolution. For the spouse who is psychologically unprepared to get down to the business of resolving the divorce issues, it is often the only way to create any movement toward resolution. Psychological inertia is often very real.
For the spouse who is dishonest, the litigation process has several mechanisms available to compel full disclosure under oath. Once your spouse’s contentions are set forth under oath, your attorney can then use the subpoena power of the court to obtain documents and/or take testimony from witnesses which may contradict your spouse’s contentions. Evidence of lack of credibility often weighs heavily in a judge’s mind in determining the final outcome of the trial.
The most significant disadvantages of litigation are costs (legal fees, court costs, expert witness fees, lost time from work to attend hearings/meet with lawyers, etc.) and the destruction of the ability to parent effectively together. Many of the disadvantages of litigation are reciprocal to the benefits of mediation. However, mediation requires some modicum of good faith, full financial disclosure, and a genuine desire to reach a fair resolution — when confronted with a spouse who cannot be honest and otherwise acts ethically to bring a case to a close, litigation is often the only way to go.