Divorce Representation and Litigation

What is litigation?

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.

Why litigate?

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.

1. Your spouse leaves the jurisdiction without warning and refuses all access between you and your children.
2. Your spouse cuts you off financially, and you have no means of financial support unless you obtain a court order for child support and/or alimony.
3. Your spouse is dishonest and will not fully disclose all financial assets and is unwilling to agree to a fair distribution of assets.
4. Your spouse refuses to participate in mediation.
5. Your spouse knows you want to get on with your life and therefore wants to drag out the process for as long as possible to make you feel their pain.
6. Your spouse desperately wants to reconcile even though the marriage is over, and therefore uses any settlement process simply to attempt to get back together.
7. Your spouse refuses to engage in any settlement discussion or simply refuses to talk to you at all.

What are the benefits of 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.

What are the disadvantages of litigation?

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.