Litigation is the traditional way to get divorced. In divorce litigation, you and your spouse each hire attorneys (or not) and go to court. Then you can either fight until in court you are exhausted and finally settle. Or you go all the way through a trial and let a judge decide your divorce issues for you.
The Divorce Litigation Process
The exact path your divorce litigation will take depends upon the facts and circumstances of your case, as well as the state you live in. Your judge and your divorce attorney can also affect the way that your divorce litigation unfolds. That having been said, though, most divorce cases follow a similar trajectory.
Divorce litigation typically starts when either you or your spouse files a petition for divorce in court. (This document may have a different name in your state. But its function is the same. It is a document that says to the Court, “I want a divorce!”)
After filing your divorce petition you either have to formally serve your spouse with a copy of that Petition or your spouse has to voluntarily file an appearance in court. Once your spouse has been served, or files an Appearance in court, your case can move forward.
While your case is pending, various issues can arise. Maybe you want the judge to grant you temporary support, custody, or attorney’s fees. Or maybe your spouse isn’t doing what s/he is supposed to do so you need to file a motion to compel him/her to do that thing. The precise motions that your attorney will file in your case depends upon you, your spouse, the law in your state, and the facts and circumstances in your case.
Soon after the initial Petition for Divorce is filed a process of “discovery” begins. “Discovery” is a legal term that identifies the phase of your case in which you and your spouse both try to discover the information from each other and from third parties.
The following documents are typically part of the divorce discovery process:
- Interrogatories – Written questions that require written answers.
- Document Production Requests – Formal lists of documents which you ask the other party to produce.
- Depositions – Oral question and answer sessions that typically take place in a lawyer’s office with a court reporter present.
- Subpoenas – Formal lists of documents which you ask someone other than your spouse (e.g. banks, credit card companies, etc.) to produce.
In divorce cases, discovery typically centers around collecting financial information. It can also involve obtaining information about your children. Depending upon the laws in your state, it might also include trying to uncover information about your spouse’s bad behavior (i.e. affairs, gambling, etc.).
To find out what discovery in your case will involve, consult with a divorce attorney in your state.
At some point either you or your spouse (or both of you) may decide that you’ve had enough. You then either settle your divorce, or you ask a judge to decide your divorce. The only way a judge can decide your divorce is at a trial. During trial, you present evidence and testimony to support your position. Then you ask a judge to divide your property, divide your debt, decide issues of support and decide what happens to your kids.
Depending upon where you live, and what is involved in your case, getting to trial may take several months, or several years. The trial itself may take just a few hours. Or, it can take weeks, or months.
You and your spouse can go to trial with or without an attorney. But going to trial without an attorney is like going to surgery without a doctor. You can do it, but it’s going to hurt a whole lot more. Plus, your chances of having a good outcome (especially if your spouse has a lawyer and you don’t) are pretty slim.
Is Trial Inevitable?
Just because you use traditional divorce litigation to start your case, that doesn’t mean that you have to go all the way to trial. As a matter of fact, most divorce cases never get tried.
Even the most hotly contested divorces usually end up being negotiated and settled before trial. Plenty of cases get settled on the eve of trial or “on the court house steps.”
What’s more, courts want you to settle your divorce yourself. Many jurisdictions have mandatory divorce mediation. They may also require you to go to a pretrial or settlement conference before trial. In short, the entire divorce system is designed to encourage you to settle your divorce outside of court.
Traditional Divorce Litigation
Divorce litigation is by far the most expensive, time-consuming, and emotionally-draining way to get divorced. If you have a choice, resolving your case any way other than by going to trial usually makes sense. That having been said, sometimes litigation is your only choice.
If your spouse is abusive, unreasonable, or seriously mentally ill, you may need the protection the court system affords. If your spouse refuses to settle your case, you will have to go to trial.
The primary advantage of going to trial is that, one way or another, it always ends your divorce.
To help you decide which divorce process might be best for you, click on the button below to get your FREE Divorce Process Comparison Chart.