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Divorce Litigation

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.

When you’re going through a divorce, and you’re spitting mad at your spouse, few things are more satisfying than screaming, “Oh yeah?! I’ll see you in court!”

Unfortunately, few things are as expensive, time-consuming, or destructive as divorce litigation.

Close up of unbalanced scales of justice with a court room in the background

What is Divorce Litigation, Anyway?

According to Black’s Law Dictionary, litigation is “a contest in a court of justice for the purpose of enforcing a right.” In other words, litigation means going to court to resolve your disputes and enforce your rights.

Divorce litigation means taking your spouse to court and asking a judge to enforce your rights so that you can (presumably) get justice. Subconsciously (or maybe not so subconsciously) it often also means that you want a judge to tell you that:

  1. You are right and your spouse is wrong;
  2. You are entitled to be compensated for the pain your spouse caused you, both during your marriage and by breaking up your marriage; and
  3. Your assets should be divided, support should be provided, and your kids should be parented, in exactly the way that you believe is best.

Unfortunately, none of those things is likely to actually happen when you go to court. (Sorry!)

It’s rare that the court will find that either you or your spouse is totally right or totally wrong. Whatever your spouse did to you during the marriage will probably have very little impact on your divorce.  Finally, while the judge may give you some of what you want, you will not get everything.

Yet, even knowing that you’re not likely to “win” everything in court, it’s still tempting to want to wage war with your soon-to-be-ex. When divorce happens, especially if it’s a divorce that you didn’t want, you are looking for someone to validate your position. You think that the judge will be that person. You are looking for emotional justice.

Plus, let’s be honest. On some level, deep down, you really want your spouse to suffer.

If that’s what you’re after, this is what your divorce process will likely look like.

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.

Discovery

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.

Upset man on the witness stand at his divorce court hearing while judge confers with lawyer

Divorce Trials

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 courthouse 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.

The Hidden Costs of Divorce Litigation

Of course, fighting in court comes with a price.  It takes a tremendous amount of your time, money and personal energy. That’s why so many people try to stay out of divorce court and settle their divorce amicably.

But, when your spouse is being unreasonable, and pushing every last button you have, it’s easy to throw caution to the wind, “lawyer up,” and engage in the War of the Roses.

If you are finding yourself tempted to start fighting with your spouse in court, even though you know that doing so will cost a fortune and probably hurt your kids, here are three more reasons why litigating your divorce is a really bad idea.

Blue and pink boxing gloves with hearts on them facing off.

1. It’s hard to take off the gloves once you’re used to fighting.

The secret that most divorce lawyers won’t tell you about divorce litigation is that it doesn’t end when you’re divorced.

Divorce courts are packed with people who are still in court fighting long AFTER their divorce is already over.  Yes, you read that right.  Even once you are legally divorced, you can still continue to fight with your ex.

You can fight over what your divorce papers really meant. You can fight to force your spouse to do what s/he was supposed to do but did not do.  Or, you can fight over the house.  Most of all, you can fight over the kids.

If you fight your way through your divorce like it is an epic battle from The Game of Thrones, the only way you know how to relate to your ex is by fighting. It becomes your pattern. Once that happens, there is a better than average chance that you will continue fighting with your ex for years, or maybe even decades, after your divorce is over.

Hand writing the words, "Can you prove it?"

2. Divorce litigation keeps you locked in your pain.

What you focus on expands. Focusing on litigation keeps you focused on fighting.  It keeps you locked so deeply in battle, that you don’t even see the collateral damage caused by your war.

Wanting to “win” is addictive. If you want to win in court, you start spending your time documenting everything your spouse does wrong so that you can prove it in court. You no longer talk to your spouse. You talk to your lawyer, who talks to your spouse’s lawyer, who talks to your spouse. It’s like a giant, twisted game of “telephone.”

The more time and energy you spend strategizing how to destroy your spouse in court, the less time and energy you have to actually solve your problems and move on with your life. Without realizing it, winning in court becomes your primary objective. Getting through your divorce, taking care of your kids, and learning to be happy again, all fall by the wayside.

Cartoon silhouette of mom and dad fighting on opposite hills, with their children on a board over the chasm between them and a sign saying "Stop"

3. It’s tough to co-parent with your enemy.

Fighting in court pits you against your spouse. It buries you in the mentality of battle. The problem is, it’s really tough to sit next to your spouse at your kid’s parent-teacher conference in the afternoon when you’ve spent all morning being grilled by your spouse’s attorney at a deposition.

Effective co-parenting requires you to maintain at least a base level of respect for your spouse. It also requires regular communication, as well as a good deal of flexibility and cooperation.

Divorce litigation breeds contempt and mistrust. When everything you say to your spouse can be used against you, you stop talking to him/her. That lack of communication, in turn, breeds more misunderstanding and mistrust.  Even if you are not fighting about the kids in court (and especially if you are) the fact that you are fighting with your spouse at all ends up damaging your ability to work together as parents.

Fighting in court hurts your kids.

Cartoon of couple fighting in divorce court

Moving Past the Court Room?

Fighting in court hurts you on a multitude of levels. It costs an enormous amount of money. It takes your time and drains your energy. More than that, it hurts your kids. It also locks you in your pain and positions you to keep fighting with your ex for years to come.

Not fighting in court takes courage. You have to be strong to be able to negotiate when you’re afraid that your spouse is going to take advantage of you. You have to be able to walk the talk when you say you are going to put your kids first – especially when doing so costs you financially or emotionally.

Most of all, you have to be willing to let go. You have to let go of your need to punish your spouse, and your need to be right.  It’s not easy NOT to fight. In the end, though, resolving your divorce amicably, through mediation, negotiation, or collaborative divorce, will pay benefits later on that you can’t even imagine right now.

At the same time, if your spouse won’t agree to resolve your divorce in any way OTHER than litigation, then you’re stuck. Your only choice in that case is to litigate your divorce.

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