Divorce Options: Litigation
What are your divorce options?
Option 3: Litigation
Up next in our divorce options series is the option of litigation. The formal litigation process involves one spouse suing another in court (Gaies, 2018). Lawyers are hired as “opposing counsel” and spouses are viewed as “opposing parties (Gaies, 2018, p. 4). In traditional litigation, spouses do not communicate with each other; rather negotiations take place through lawyers. Separate experts are commonly called to testify during court proceedings. Gaies (2018) states that often, mediation is also part of the litigation process and will take place after litigation has already begun. As part of the litigation process, a mediator (impartial professional) may help the partners reach a full agreement; however, if the partners and the mediator cannot reach an agreement, the case reverts to the court. Litigation focuses only on the dispute between spouses, while it does not aim to solve any problems that the divorcing couple has, e.g., a couple has a combined annual income of $100,000 but it will cost $110,000 to live separately (Gaies, 2018).
In traditional litigation one lawyer is not legally allowed to represent both parties (Webb & Ousky, 2007). According to Webb & Ousky (2007), a traditional divorce typically starts when one partner (and usually their attorney) prepares a Summons (an official document which commands the other spouse to do certain things such as submitting an official answer to the summons) and Petition (a court document that states facts about the case and outlines what the spouse wants from their partner or the court). Preparing, serving, and filling the Summons, Petition, Answer and Counter-Petition are costly, public, and formal acts (Webb & Ousky, 2007). In litigation, information is filed with the court and is therefore made public. Court hearings are often open to the public, and anyone can access information such as finances or personal family details, e.g., past indiscretions, infidelities, substance use issues, etc. Litigation includes high costs, and the time frame can often be a year or two (Gaies, 2014).
Traditional litigation may not be a good option if the clients want to keep their private business off the public court record or keep their financial information private, or if the family wants the option to find unique agreements which fit their family and their needs. On the other hand, according to Gaies (2018), traditional divorce via litigation is necessary when “one spouse is dangerous” and the other spouse and the children need to be protected; when one spouse has “serious mental health issues and refuses treatment”; or when a spouse is “suspected of hiding large sums of money or is blocking the release of financial information” (p. 5).
Litigation may be a good option if one or more parties wants or needs a lawyer to advocate their interests or if the parties want “to use traditional procedure and/or want lawyers to take primary responsibility for negotiation” (Lande & Herman, 2004, p. 285 - 286). If parties are willing and able to pay for professional services; if parties don’t want a neutral third party to manage negotiations; if at least one partner is able to hire an attorney; if domestic violence is/has been an issue within the relationship; or if one or both parents are unable or unwilling to create a safe environment in which to co-parent his/her children after the divorce, litigation may be the only appropriate option (Webb & Ousky, 2007; Lande & Herman, 2004).
Written by Caitlin S. Lowry, PhD, LMFT
References
Gaies, J. (2018). A clear and easy guide to collaborative divorce. ISBN: 198573818X. (pp. 3-20).
Lande, J., & Herman, G. (2004). Fitting the forum to the family fuss: Choosing mediation, collaborative law, or cooperative law for negotiating divorce cases. Family Court Review, 42(2), 280-291.
Webb, S., & Ousky, R. (2006). The collaborative way to divorce: The revolutionary method that results in less stress, lower costs, and happier kids—without going to court. New York, NY: Hudson Street Press.