Types of divorce proceedings – Traditional litigationby Erin Wilkins (Law Office of M. Erin Wilkins, LLC)
Most people, when they think of any type of lawsuit, immediately picture two opposing sides in a courtroom, presenting their cases in front of a judge. This is traditional litigation, an adversarial method of resolving an issue. In a divorce proceeding, the litigation is used to resolve the issues – custody determinations, spousal support and maintenance, the division of property.
A contested divorce often leads to litigation. A contested divorce is just what it sounds like – the parties cannot come to an agreement and contest the other side’s idea of what is a fair end to the marriage. While neither party should simply acquiesce to the other party’s terms, it is important to pick your battles. Where an issue is very important, and a resolution cannot be negotiated between the parties, litigation is the best option. While it is expensive and can take a great deal of time, it can be helpful to have a neutral third party review the issue, take into account the facts as presented and render an unbiased decision.
Parties who proceed with litigation in order to settle their divorce issues often find it expensive and sometimes very fractious. The parties often end up in litigation because they cannot come to terms on specific issues and can be very contentious.
During litigation, each party will present his or her side of the case, generally through their own testimony and whatever evidence is appropriate – for example, financial records in the case of child or spousal support issues. The judge will review the testimony and evidence and come to his or her conclusion. The judge’s decision is generally final, as appealing a decision is expensive and difficult to overturn.
For a divorcing couple with a great deal of acrimony and a complete inability to resolve issues, litigation may be the best option. An experienced family law attorney will help you see the big picture and decide if a litigated divorce is the best way to expend your resources – emotional and financial. High conflict cases can often only be resolved in the presence of a neutral third party who makes the decision. Some divorcing couples have a dynamic where coming to a decision together just will not work.
Not every issue must be resolved through litigation. Often, parties work through the most of the issues in settlement talks, but there can be a sticking point or two where neither side will budge. It may be a custody issue or deciding who gets to keep the house, but in any case, settling the issue in front of a neutral third party may be the best option.