Litigation
Navigating Divorce Through the Court System
Unfortunately, sometimes courts are necessary to resolve disputes. Litigation is the formal court legal process where both parties hire lawyers to provide advice and advocate their client’s positions in negotiations and court. Negotiation occurs in the context of the positional legal system, and the parties and lawyers retain the option of turning to the court as a third-party decision maker if resolution is not reached on all issues. The parties generally communicate through their lawyers regarding their positions, proposals and counter-proposals. Most negotiations occur within the confines of statutory and case law precedent and legal formulas and against the backdrop of potential of court intervention and decision-making.
Further, each party may hire experts to support their positions. In some jurisdictions in cases with child custody or placement issues, the court will appoint a third attorney, called a Guardian ad Litem, to advocate for the interests of the children. Ultimately, if agreements are not reached, parties and other witnesses testify before a judge, who makes a ruling on each disputed issue.
What to Expect with Litigation
Most litigation cases are eventually settled. Over 98% of all divorces are resolved short of trial through some form of bargaining and negotiation. Unfortunately, resolution through litigation often occurs after substantial time, money and emotion have been spent in legal conflict. Further, one or both parties may be dissatisfied with the court outcome, and they are then likely to appeal the judgment or return to court in the future to argue for modifications of specific orders. In cases involving placement of children or payment of child or spousal support, parties may frequently return to court after the initial determination to seek modification of those terms in further post-judgment litigation.
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