How to Resolve a Divorce - Litigation

You have the option of commencing the case by immediately filing the Complaint.  While it is pending, you can negotiate directly with your spouse.  There can also be “four way conferences” where the parties and their attorneys meet to negotiate.  Various proposals and draft agreements can be exchanged.  At some point during the case, an Early Settlement Panel hearing will be held at the Courthouse, which is a non-binding arbitration hearing before one or two independent attorneys who hear the disputed issues and make a non-binding and confidential decision on how it should be resolved.  There may also be settlement conferences at the Courthouse, where the judge presiding over your case may meet with the lawyers to facilitate negotiations, and in some instances make recommendations or provide his or her impressions about the parties’ positions.  If the case is not settled, a trial is held, where the parties present evidence in an adversarial proceeding and the judge makes the decision.  You would have the right to appeal any such decision to a higher court.

Advantages to litigation

1. The filing date of the Complaint for Divorce is utilized for the date of the termination of the marital property for many purposes, whereby all assets and liabilities in existence on that date is subject to distribution, but perhaps not assets or liabilities acquired after that date.  Thus, there may be a financial protection given to you by simply filing the Complaint.  This website does not provide a sufficient opportunity to describe all of the different issues that are involved in determining the date for the distribution of property, or the date to use for the valuation.  There are many issues 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 despite the filing of a Complaint.  Suffice it to say that if you believe there may be an immediate need to protect your subsequently acquired assets or income from your spouse, or to shield yourself from your spouse’s liabilities, then this course must be given further consideration.
2. By immediately commencing the litigation, you have 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, you can seek an immediate temporary order of support, or maintenance of life insurance to secure support obligations.  Importantly, you can also obtain an Order preventing the dissipation, sale or destruction of assets, or restraints against utilizing credit.  All Orders can be enforced by the Court.          
3. During the litigation the parties are required to make certain financial disclosures under oath, and false statements are subject to penalties under law.  You can also seek additional financial disclosures by seeking what is called discovery.  You can send written questions to be answered under oath subject to the same consequences.  You may also request the production of documents, you may take depositions of your spouse or other persons under oath, and you may seek third parties (such as banks, accountants, credit card companies) to produce documents. In the alternate proceedings there is no ability to compel discovery from your spouse or third parties.
   

1. It is an adversarial proceeding.  If you have not been separated for eighteen months, the Complaint must specify one of the grounds of fault on the part of your spouse that we have discussed.  The adversarial nature of the proceedings and negotiations sometimes has adverse consequences on the relationship between the parties during and following the case.  This can be particularly difficult when children are involved, and there is a need to continue to co-parent during and following the completion of the case.  For these cases involving children, the adversarial nature of the dispute between their parents can have many different negative consequences.   
2. Confidential financial and personal matters become public record and may be open to scrutiny. 
3. Negotiations during the litigation frequently take place in crowded courthouses under deadlines from the Court, which many feel create undo pressure and lack privacy.
4. If it is the Judge who makes the decision, you surrender the power to determine the terms of the decision, and you lose the option of creative and more thoughtful solutions that may be better for both parties.
5. The costs can be significant.  A case tried to completion before a judge making the decision can be expensive.  Even with a case that ultimately settles, there are many different court appearances required by the attorneys during the course of the case, and many hours spent waiting at the courthouse due to the limitation of the Court’s resources, that will be charged.

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