Litigation is the process of going to court to resolve disputes. Hopefully you have given serious consideration to the possibility of a collaborative divorce, or family mediation, and you yourself would welcome the opportunity to sit down with your partner and try to resolve things amicably, with the help of trained negotiation professionals. Sadly, it is your partner who is unwilling at this time to talk things through with you, so you find that you have no alternative but to go to court.
You and your spouse, who will now be your adversary, each hire your own attorney, who promises an all-out fight for your rights. There is usually very little attention paid to the effects of the battle: the collateral damage that is being done to your ongoing relationship with your partner, the emotional turmoil being inflicted on your children, the depletion of family assets to fund the fight. All this is happening at a time when you and your family most need to support your children, conserve your assets, and help each other, as only you can, get through the separation and divorce.
Divorce litigation is a multi-stage process that will generally take well over a year to be resolved, and will typically cost tens of thousands of dollars, if not a lot more. The first stage involves setting out your case in court documents. Your lawyer will ask you for the details of your life with your partner, with particular attention being paid to their parenting errors, missteps, and personal shortcomings. Your spouse’s lawyer is compiling the same information against you. Your lawyer will use this information to draft your divorce application and your affidavits, which are sworn statements that the situation as portrayed by you, the affiant, is accurate. If there is an emergency situation, you and your spouse may be in court within days of either of you first meeting with your lawyer, to obtain a safeguard order. At the hearing of the safeguard order, the judge will read the affidavits, decide whose version of the situation is true, and make decisions for you, on all of the urgent matters detailed in the court documents. The questions of child custody, visitation, child support, spousal support, and living arrangements are typically dealt with at this initial stage of litigation. The court’s decisions on these important matters become your interim judgment, and it will govern your dealings with your partner on these issues until it is replaced by either a provisional judgment or a final judgment, depending on the complexity of your file and how long it is taking to gather information and complete the documents required to request a date for a final court hearing.
In making the rulings that are contained in your interim judgment, the judge will have had very little time to assess the reality of your situation, and even then, has only had the benefit of reading your respective lawyer’s court applications, and your affidavits, which may differ wildly from each other. The outcome of the safeguard order may be a judgment which is completely unfair to one of you, or in the worst case, bad for both of you, but nevertheless it is legally binding on both of you. In my experience, it is very difficult to change an interim judgment, even where there has been a change in the situation of the parents or the children.
You may then decide that now would be a good time for mediation. You can start or continue with sessions of family mediation, or change to a collaborative process at any stage of your divorce, but in reality it is harder to deescalate conflicts than it is to avoid them at the outset. Still, your partner may now be willing to try family mediation or collaborative divorce, as an alternative to what has likely been, so far, an emotionally traumatic and enormously expensive experience.
There can be no question that it is preferable to keep your family issues, and your family, out of court. Unfortunately, in some cases, litigation may be the only way to force a party to respect the law, or to act in the best interests of the children. In those limited cases, recourse to the courts may unfortunately be required. But before you make that decision, make sure you have received good advice, and have made every possible effort to settle without going to court.
“If all you have is a hammer, everything looks like a nail” — Abraham Maslow
As an experienced collaborative attorney, family mediator, and reluctant family litigator, I can help you evaluate the issues involved in your divorce, and choose the dispute resolution approach that is most likely to lead to a sustainable and rational outcome, for you, your partner, and your children, from which everyone can safely move on.
