Divorce Litigation: Everything You Need to Know
- About divorce litigation
- Pros and cons
- When is divorce litigation necessary?
- Why should couples avoid divorce litigation?
- How to prepare for divorce litigation
People file more than 100 million cases each year in state courts. Some of these cases involve couples who want to break up their marriages.
Divorce litigation entails working with a judge to end your marriage. This is the longest and most costly way to split up with your partner. But in some cases, it is the only way forward for both you and your partner.
What is divorce litigation?
Just like marriage, divorce is a legal state. Couples tend to ask one another for a divorce, but officials must grant it. During divorce litigation, you end your marriage with the help of lawyers and a judge.
In a typical divorce litigation process, both parties hire lawyers. The two parties prepare cases to help them settle questions about the following:
- Spousal support
Each side explains why their vision seems best, and they offer supporting documents and testimony to persuade outsiders that their vision makes sense.
At the end of the court case, a judge rules on the estate. Those decisions are documented in official papers both couples must sign. The ruling is binding, but either side can file an appeal. If they do, the process begins again.
Pros and cons of divorce litigation
Courts offer divorce litigation because it works well for some couples. Without this option, some people with difficult break-ups could never distribute their estates equitably.
But the fact that divorce litigation works for some couples doesn't mean it's right for everyone. Understanding the pros and cons is important.
Benefits of divorce litigation
If your partner keeps you from speaking clearly and honestly, participating in a conversation like mediation could be impossible. Mediation allows your lawyer to speak for you, so you don't have to engage in direct conflict.
Divorce mediation can also help couples who can't agree, even in mediation, about important topics. A judge can cut through the roadblocks and make the couples agree.
Some couples don't agree because they want revenge on the other party. They want the gore and blather of a long court case so they can hurt the other person as much as possible. The truth, however, is that you aren't likely to get the emotional justice you seek in a divorce court. But litigation could be a good choice if you just can't work with your partner because you're too upset.
Drawbacks of divorce litigation
Couples can use mediation or DIY collaboration to end their marriages. These options can cut through conflict within a few hours. Divorce can last much longer.
In Oregon, for example, courts require cases to finish within a year. Without this rule, some might last even longer.
While some couples consider long and ugly cases a benefit because they are angry at their ex, most parties find this to be a significant drawback. Court cases can make a couple’s private problems very public, and the harmful statements people make could stick with you.
Since court cases are long and often involve witnesses, they can be very expensive. Most lawyers charge by the hour, and very complex cases can take a lot of time. The money you spend on litigation could be used for another goal, such as paying for your child’s education or buying a future home.
When is divorce litigation necessary?
While divorce litigation isn't always required, some couples must take this step. Litigation could be necessary if these situations sound like you:
- You can’t agree any other way. Mediation can resolve close to 80% of cases, but it doesn’t always work. If you’ve tried mediation and can’t agree, court may be a good option.
- You are afraid of mediation. Power imbalances can keep you from negotiating clearly in mediation. A court case could be a better option.
- You have too many issues to resolve. Some couples argue over almost every part of their case. They can’t agree about anything about their estate, their debts, or their future. Asking a judge to help could be a wise step.
- One partner won’t participate. Negotiation requires work by two people. If your spouse won’t communicate with you and will not enter mediation, a court case could be helpful.
Why should couples avoid divorce litigation?
No one should enter a courtroom without considering the options carefully. While you might think this is your only option, you do have choices.
Couples should avoid divorce litigation due to the following:
- Costs: You must hire a lawyer to help you with the case, and that person charges by the hour. If your case is complicated with plenty of contested issues, you will pay a lot for a divorce. Mediation is much less expensive.
- Length: Divorce litigation can take months. Mediation is typically over within a few sessions.
- Damage: While mediation isn’t pleasant, it’s also typically less harmful than a court case. Couples collaborate in mediation, and neither party is right or wrong. In a case, one party wins, and the other loses.
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How to prepare for divorce litigation
Your lawyer should help you understand what to do and say to help you during your divorce trial. Typically, your lawyer will do a lot of the work for you. But there are things you can do to help.
To prepare for litigation, you must do the following:
- Be honest. Tell your lawyer everything about your marriage, your partner, your goals, and your arrangements. Don't hide anything.
- Gather support. Your lawyer might need evidence, such as bank statements, calendars, marriage certificates, and more. Get everything your lawyer needs.
- Practice. Sometimes, lawyers ask their clients to speak openly in court. If your lawyer does, figure out what you will say, and rehearse it a few times.
When the litigation day arrives, be on time, and dress professionally. Stay focused on your case at all times. If you're asked questions, answer clearly, and stop talking when you're told to.
Remember that your lawyer is your ally in court. If you have any questions or concerns, speak up and ask for help.
ReferencesFAQs: Judges in the United States. Quality Judges Initiative.
National Statistics About Domestic Violence. Connecticut Coalition Against Domestic Violence.
Divorce in Oregon. Oregon State Bar.
Effectiveness of Mediation: Analysis of Cases Handled by Four Major Service Providers. (1996). U.S. Department of Justice.
Going to Court. Judicial Branch of California.