The traditional route which parties travel once the decision to divorce is made is litigation. It is a path which winds through the Court system and ultimately leaves the decision-making to a Judge. Below, are some aspects of the litigation process:
Litigation is adversarial. Imagine attorneys doing battle in front of a Judge who is somehow to discern the truth once the smoke clears. Litigation is emotionally and financially draining.
Procedure: Litigation begins with one party filing a Complaint for Divorce, brought either on fault or, on no-fault grounds. The party who files is the Plaintiff and the other party is the Defendant.
Service of the Complaint: A deputy sheriff or constable, then serves the Complaint on the Defendant.
Participation is Mandatory: Once this route is chosen, participation is mandatory as the Court may enter orders if either party chooses to ignore it.
It is very Public: Court proceedings are held in an open courtroom where microphones amplify and record all that is said. Most documents on file are also publicly accessible.
There is a Timeline: The litigated divorce proceeds along a timeline, imposed by the Court, which is designed to conclude within fourteen (14) months.
- Motions for Temporary Orders: Court appearances are commonplace to set temporary orders – establishing custody, fixing a parenting schedule, determining child support and/or alimony or addressing medical insurance or college costs – which orders will stay in effect until modified or the case is concluded.
- Discovery. Discovery is the formal process of gathering information. At a minimum each party is required to exchange three (3) years of certain financial records, within 45 days. However, your case may require further and more detailed discovery in order for both parties to understand the family’s finances, establish the value of retirement assets, discern business income and expenses, appraise the value of real estate or of a business, understand the availability of medical insurance coverage, determine parenting responsibilities and figure out the origin of debt. Discovery must be completed before a Pre-Trial Conference is held, usually within the first six months.
- Settlement conference. When discovery is completed, the parties are required to meet, in person, to discuss settlement.
- Pre-Trial conference. An open-court meeting with the Judge to discuss settlement and narrow the issues that will be tried.
- Trial. A trial may last for a few hours or a few days, during which you and your spouse will testify and be cross-examined, other witness may be called, and admissible documents will be submitted. The Judge can only consider evidence that meets certain standards and can only apply it in specific ways. As a result, there may be things that you feel are important for the Judge to know to fully understand the case, but which she is prevented from hearing or considering in making her Judgment – the ultimate determination of your and your spouse’s rights and obligations toward each other and toward the children. Once the trial ends, you have no control over the outcome. In fact, it is likely that you and/or your spouse will be displeased with the Judge’s decision, despite the great financial and emotional cost that the process has caused you and your family.
It should be noted that most contested divorce cases settle before trial. Often this occurs at the point when the parties realize that continuing with litigation is not cost-effective, emotionally and financially. Therefore, settlement after the initial motion hearing will be less expensive than one that happens at pre-trial conference or on the first day of trial.
Alternatives: Thankfully, Coffee, Mediation, and Collaborative Divorce are alternate routes to divorce resolution that may save finances and preserve relationships. Please visit those pages and call me to learn more about these litigation alternatives.
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