The previous posts in this series discussed mediation and collaborative divorce and this post will continue with litigation.
You most likely associate the word “litigation” with nasty court room battles at a great expense. In some instances that is the case, however, “litigation” does not always have to be an expensive battle. In its simplest form, litigation is the process of taking legal action. Whether you choose mediation, collaborative, litigation, or alternative dispute resolution divorce models, you must take legal action against your spouse, which means a Marshal serves your spouse with the Summons, Complaint, and Automatic Orders, and then you file those documents with the Court. The differences between the various models hinge on what course you and your spouse decide to take after the action is filed with the Court. Sometimes you do not have a choice based on your spouse’s actions, and the default model is litigation. Irrespective of the model, you and your spouse must still resolve the same issues including legal custody, physical custody, alimony, child support, housing, division of bank, brokerage, and retirement accounts, and the division of personal property.
The most significant difference between mediation/collaborative and litigation is the option of having the court decide issues in the event you and your spouse cannot agree. In addition, the court serves as an enforcer of the rules of practice and laws such as discovery deadlines and the Automatic Orders. Having the option of going to court can be a positive. The threat of going to court may compel your spouse to follow the rules since the alternative is spending money and wasting time in court, just to have the Judge order your spouse to do what he or she is otherwise required to do. The threat of going to court can also be a deterrent since it leaves the decision to a stranger in a black robe – the Judge – who will make life altering decisions regarding where your children will live and how much money you will receive.
If you are a person living in Greenwich, Westport, Fairfield, Stamford, Darien, or New Canaan, you have probably heard of divorce litigation horror stories, but less than 5% of cases actually go to trial, and that includes cases which fit the “litigation” model. The small percentage of cases that do go to trial, often involve complex financial issues, serious custody disputes, litigants with unreasonable expectations, or litigants that allow emotion to get in the way of his or her better judgment. Those types of cases generally become quite expensive due to the amount of discovery, depositions, hearings, and preparation for court appearances. These are some of the reasons why many people perceive the litigation model as being more expensive than the other options.
However, the litigation model does not have to be expensive, especially if you retain the right attorney. A reputable attorney with significant matrimonial litigation experience, is generally able to assess the strengths and weaknesses of your case and advise you as to the range of possible outcomes, which should include a cost benefit analysis of your interests versus the potential cost of obtaining your goals. With that analysis, you and your attorney should be in a position to negotiate a reasonable settlement based on your specific circumstances prior to heading to a trial. Trial should be the last resort, only to be used if a settlement cannot be reached after making genuine efforts to resolve the case through negotiations. If you are someone who wants to “win” every issue, it is unlikely you will be able to arrive at a settlement, and a trial is the only alternative at that point. However, even if you “win” every issue at trial, your spouse may appeal, which could add an additional two years to your case.
Broder Orland Murray & DeMattie LLC, in Westport and Greenwich, Connecticut, offers experienced guidance in all types of divorce processes. Our lawyers take the time to understand the issues important to you and will strive to create workable solutions for you that are fair and equitable under all of the circumstances.
