Litigation is typically the most common option chosen by couples who are divorcing. The other options are: mediation, collaborative divorce, and a do-it-yourself divorce. There really is no “one size fits all” option; every family and every divorce is different! In this blog, we’ll talk about when litigation may be the best option, and what to expect from the litigation process.
Many people mistakenly think that divorce litigation means that you automatically end up in court. In actuality, more than 95% of litigated divorces are settled out of court. The reason why litigation is the most chosen option by couples is because a vast majority of divorces are unilateral, meaning that one spouse wants the divorce, and the other spouse doesn’t. Without a mutual agreement to divorce, many cases start right off the bat being adversarial and highly emotionally charged.
Sometimes couples will try another route first, such as mediation or collaborative divorce but cannot come to agreement. In other cases, domestic violence, child abuse, drug abuse, or criminal activity may make it too difficult for the couple to communicate and come to agreement on the terms of the divorce.
Child custody, division of marital property, and spousal support are usually the hotly contested issues in many divorces. Though litigation is by nature adversarial, an overly contentious approach to litigation will likely backfire, prolonging the emotional pain and skyrocketing legal fees since the case will likely end up in court. A good litigation attorney is an expert negotiator, but will not fight over each and every detail of the divorce. They will work to find the best compromise, a reasonable resolution that will keep your divorce case out of court.
If your divorce does go to court, litigation is used to resolve only the issues that the couple has not been able to agree on – for example, child support. There may only be one issue that cannot be resolved and needs to be litigated in court, or perhaps there are a few sticking points that cannot be resolved.
During courtroom litigation, each spouse’s attorney will present their side of the case, including any applicable evidence. This may simply be testimony, but it can include documentation such as bank statements, tax returns, life insurance policies, etc. The judge will review the testimony and evidence and come to his or her conclusion.
Courtroom litigations are risky – a judge who knows very little about you and your family is making decisions about your money, your children, and your property that could impact you for the rest of your life. That’s a big risk for both parties to take!
If you need advice regarding divorce litigation, please feel free to call our office at 714.841.1931 for a free consultation.
Disclaimer – The materials contained in this blog have been prepared for informational purposes only. The information contained is general in nature, and may not apply to particular factual or legal circumstances. In any event, the materials do not constitute legal advice or opinions and should not be relied up on as such.