Litigation is the most common method of obtaining a divorce, wherein a judge decides every condition of settlement. This process begins when one party files a complaint with the court, after which the court system sets a schedule for proceedings. Once the process is initiated the courts have the power to issue and enforce orders, set levels of support, and dispose of or freeze assets, as well as take any other related actions to prepare the case for trial.
Advantages to Litigation
a. The filling date of the Complaint for Divorce serves as the date of the termination of the marital estate, making all assets and liabilities in existence on that date subject to distribution, though perhaps not those acquired after that date. Thus, a financial protection is afforded the parties by simply filing the Complaint. Many issues do remain however regarding the subsequent change of value of passive or active assets, or subsequently acquired assets or liabilities, that may give rise to distribution or a claim to assets, despite the filing of the Complaint. If the parties believe there may be immediate need to protect their subsequently acquired assets or income, or to shield themselves from their spouse’s liabilities, then litigation must be given strong consideration.
b. By commencing litigation, the party has the right to obtain immediate orders from the court. Some important immediate orders include those involving custody of children, parenting rights and removal of the children from the state or country. Also, the parties can seek an immediate Temporary Order to Support, or maintenance of life insurance to secure support obligations. The parties can also obtain an order preventing the dissipation, sale, or destruction of assets, as well as restraints against utilizing credit, all of which are enforced by the court.
c. Litigation requires both parties to provide certain financial disclosures under oath, making false statements subject to penalties by law. The parties can also obtain additional financial disclosures by Seeking Discovery, a process wherein attorneys send written questions to be answered under oath, subject to the same consequences. The parties may also request the production of documents, take depositions of their spouse or other persons under oath, and solicit third parties such as banks, accountants, and credit card companies to produce documents. While divorcees do reveal financial information in the alternative dispute methods, litigation bears stronger scrutiny for false financial disclosures.
Disadvantages to Litigation
a. It is an adversarial proceeding, the nature of which can have adverse consequences on the parties’ post-divorce relationship. This can be particularly difficult when children are involved and there is a need to co-parent following the completion of the case.
b. Confidential financial and personal matters become public record and may be open to scrutiny.
c. Negotiations during litigation frequently take place in crowded courthouses under deadlines from the court, which many feel creates undue pressure and lacks privacy.
d. When a sole judge decides the case and its terms, both parties lose the option of designing creative and more thoughtful solutions that may benefit them both.
e. Tried to completion, a case with the judge making all the decisions can be extraordinarily expensive, much more so than a Collaborative law or a mediated case. During the course of litigation, there are frequent court appearances required by the attorneys, as well as many hours spent waiting at the courthouse due to limitation of the court’s resources, all of which will be charged for.
f. Adversarial litigation brings an inevitable increase in hostility and conflict between parties.