TO LISTEN TO EPISODE 7, CLICK HERE.
Hi, everyone, and thank you so much for tuning in to the Divorce Field Guide. My name is Ani Mason, and I’m a divorce lawyer and mediator, and I’m the creator of this podcast.
Today, we’re in Episode 7, and we are working our way through the different types of divorce processes that you can opt for when you’re going through a divorce. We’re going to be talking about a process called litigation today. I think, for many people, litigation may be what their default idea of what a divorce looks like. So, let’s talk a little bit about what litigation is.
In Episode 6, we talked about what I called settlement negotiation. I want to say at the outset that settlement negotiation and litigation are pretty closely related to one another, in the following way. Typically, when a case is brought to court to prepare the case for a formal resolution by a judge, which is the litigation process, in the background, the attorneys who are handling the case are also trying to negotiate a settlement of the case. So, litigation and settlement negotiation often, but not always, are happening at the same time.
You can absolutely have a settlement negotiation process that does not involve any action in court. There’s not an active court case. There is, then, by definition, no litigation happening. You can also have a litigated case in which the attorneys aren’t talking to each other, and there’s absolutely no settlement discussion. That’s pretty uncommon. It’s not impossible.
But, I want you to just bear in mind that – hopefully, you’ve listened to the description of what settlement negotiation is and looks like – and as I described what litigation is and looks like, it’s a little bit of a, not a false dichotomy, but they’re often intertwined with one another. But I’m going to separate them out because, technically, they are different processes.
What is litigation? Litigation is, basically, the process by which people or parties in conflict submit their particular issues that they’re in conflict on to a third-party, a judge, to resolve for them.
Litigation, unlike every other process that I have talked about so far, is not a voluntary process. It only takes one person, one of you, to file in court to get the litigation engine running, so to speak. The other person doesn’t have to be in agreement that the case be presented to a court for resolution for it to be presented to a court for resolution.
So, one person in the couple may say, “Wait, no. I don’t want to go to court. I really want to mediate this.” But if the other person is not open to mediation, or Collaborative Law, or even settlement negotiation, if they want to go straight to court, they can. That’s always available to you and to your spouse.
I would also describe to you that litigation is an adversarial system, and it’s based in the traditional framework where the two members of the couple are seen as two opposing parties. They are responsible for building and presenting the strongest possible case for their side to the decision maker, who’s the judge, and then, they hand over power to the judge, to the decision maker, to make the final and obligatory – not advisory, not voluntary, but final, obligatory – decision on a particular issue.
LITIGATION: WHO’S INVOLVED
Who is involved in a litigation process? Well, it may be self-evident, but, obviously, you and your spouse are involved, and that’s true, as I have said a couple of times, that’s true of any process. There’s no process in which you can completely outsource to anybody else to handle your entire divorce for you. So, you and your spouse are definitely involved.
If you’re in litigation, you and your spouse each have your own attorney, litigator, who’s representing you.
If you have children, and you are in conflict on the issues relating to your children, in particular, on custody, your children may well be appointed a lawyer by the court.
Then, obviously, there’s the decision maker, the judge. This person plays, perhaps, one of the most, if not the most, important role, in your litigation in that you are handing over your power to make decisions about really important issues in your lives to this third party, to the judge.
And I don’t mean that you’re doing that lightly. I think people hand over that power to the judge when they feel that they can’t make the decisions themselves, or they just can’t agree on the decisions. But the judge plays a very, very important role in the case.
I do want to mention also that, realistically – and probably is different from state to state, and even within states from county to county – but, realistically, at least in busy courthouses, you are often not, and your attorney is often not, interfacing directly with the judge.
The judge often has some kind of – whether it be called a court attorney or a law clerk, there are different names and different places – but some kind of legal assistant, who’s an attorney in his or her own right, usually with a fair amount of experience in matrimonial law, who is quarterbacking the day-to-day handling of the judge’s calendar.
That person is often the person with whom your attorneys would be speaking. You will likely not be speaking with either the judge or their law clerk or court attorney directly, at any point. Most communication, and we’ll talk about that in a second, between you and the court is had through your attorneys.
Just keep in mind, the judge is a really important player, and only the judge can make the ultimate decisions, but the court is also assisted, in large part, by attorneys who work for the court and for the judge, and they will be, typically, very involved in your case, if you do have a litigated case.
As with other cases, there may be other professionals, as well, who are involved in your case. I want to draw a distinction. You and your lawyer may make the decision to retain your own forensic accountant, your own child psychologist, your own experts, basically, to assist you on particularly important or high-conflict issues. Vice-versa, your spouse and his or her attorney may make the same decision, to retain their own forensic accountant, their own child psychologist, to assist them in building the best case that they can build to present to the judge. That’s one type of expert who can be involved in this process.
The other type is a court-appointed expert who acts in a neutral capacity. That could be somebody doing the exact same job. It could be a neutral accountant, a neutral forensic psychologist, a neutral child psychologist who’s appointed by the court. If you have a very high conflict issue around custody, the court might appoint a neutral forensic psychologist to interview both parents, interview the children, interview teachers, doctors, different relevant adults, to get a sense of your children’s lives and what would be the best arrangement for them when you move from one to two households.
So, keep that in mind that there, definitely, in a litigation, are often other professionals, beyond just the lawyers, involved. And there’s an important distinction between court-appointed professionals, who are acting as a neutral and you don’t necessarily have a say in appointing, and then your own expert, that you and your attorney retain to assist you in building your own case.
LITIGATION: WHO TALKS TO WHOM
In terms of who talks to whom in a litigation process, I spoke to this, or started to speak to it, a little bit earlier, but you, as a client, and your spouse, will be speaking individually with your own attorney. Then, your attorneys will be speaking with each other.
Every case is different, but in a typical litigation, maybe a higher conflict case, it’s less common that you and your spouse would be speaking to each other directly to negotiate the issues that you’re trying to work through. It’s not that it’s not permitted, but in some cases you may be advised by your attorney, if you’re in litigation, not to discuss issues with your spouse.
The point I want to make is that litigation would be on one extreme end of the spectrum in terms of the amount of informal communication you and your spouse have on the issues of your divorce. At the very other end of the extreme end of the spectrum would be the DIY Divorce, where it’s just you and your spouse talking to each other.
So, that’s something to keep in mind, that the communications really go from you, to your attorney, to your spouse’s attorney, back to your spouse, and then in the reverse direction.
Then, as I was mentioning, when you are in court, you are not talking to the judge, and you are not talking to the judge’s attorney or the court attorney. That’s a misconception that I think a lot of people bring to the divorce process, in part because the entertainment world portrays that people are talking to the judge. But if you have an attorney, that attorney is going to do all the talking for you.
LITIGATION: WHERE THINGS TAKE PLACE
In terms of where things take place, they take place in open court.
When you’re in a litigation process, there’s no way around it. You’re given court dates. And the frequency of those dates really varies from court to court, but at least every couple of months or so, you’re going to be given a date to show up in person in court. And you generally block a whole morning or a whole afternoon because you don’t know exactly when you’ll be called. Some courts are run differently. Some courts will give you an exact appointment, or some judges will run their courtroom that way where they give you a time-certain to come. Generally speaking, you can anticipate that you’ll be spending a whole morning or a whole afternoon waiting for your case to be called in court, and then will be in open court when your case is called and conferenced with the court attorney or the law clerk (or whatever the name of that role of the lawyer assisting the judge is in your particular location).
I will say that, as part of the litigation, of course, there’s a lot of work that’s done not in court, that’s done in exchanging extensive documentation between your attorney and your spouse’s attorney. And that’s all done, obviously, in writing.
Then, there will be a lot of work that’s also done in person or, potentially over the phone, with your attorney, meeting with you and potentially other relevant people, to learn more about your case, to develop the facts of your case.
Certainly, if your case is going to trial or is in litigation for a long time, there will be a quite labor-intensive process of taking depositions, which are, in essence, like formal interviews that are taken under oath and that are recorded. That will involve your attorney interviewing your spouse and potentially other people, and then your spouse’s attorney interviewing you and potentially other people.
So, litigation takes place both in and out of court. Although we think of litigation as the quintessential court-based process, in fact, the vast majority of your attorney’s hours spent on your case will likely be, should likely be (if they’re appropriately preparing for your case), should likely be outside of court. So, that’s where things take place.
LITIGATION: WHAT HAPPENS WHEN YOU AGREE (OR NOT)
I want to speak to what happens if you come to an agreement and what happens in litigation if you don’t come to an agreement.
In litigation, if you and your spouse come to an agreement, the litigation ends. There’s no more litigation, because you’re not in conflict anymore. If you come to an agreement, then you can go back to Episode 6 and listen to my explanation of what happens when you agree in a settlement negotiation.
Basically, your attorneys will take the lead from there on drafting the contract that reflects and commits you to the terms of the agreement that you and your spouse have made. Once that draft has been revised and is finally signed by you and your spouse, your attorneys would then submit your agreement, along with a series of other documents, divorce-related documents, to the court to approve both your agreement and issue your divorce.
Litigation, really, is more relevant where you don’t agree.
So, what happens if you don’t agree, and there is no contract to draft because you can’t agree on the terms? Basically, you continue in the formally prescribed steps of the litigation and prepare for an ultimate trial, or a formal presentation of your case and of your spouse’s case, before the judge. And then you wait for the judge to issue a decision.
The lead-up to the trial tends to be a very long process, an involved process. It requires an enormous amount of preparation on the part of your attorney and your spouse’s attorney. It requires an extensive, extensive exchange of information, mostly relevant to finances, but can also be relevant to a custody dispute, an exchange of information between the attorneys, basically. And you and your attorney, and your spouse and his or her attorney will be working to produce the information that’s requested by the other side, and you’ll be working to identify what information you want to request from the other side.
Using that documentation and the information that you give to your attorney, and that you’ve gotten from your spouse’s attorney, your attorney will put together the strongest possible presentation of your side of the issues to bolster and support your request for your ideal resolution. And your spouse’s attorney is doing the same thing.
So, you’re presenting your own case, and a part of your case is describing and pointing out why your spouse’s presentation of their case is flawed and is weak. Vice-versa, your spouse is presenting their case, marshaling the facts in their favor to present to the judge, and, at the same time, they’re poking holes in everything that you’ve presented to the judge and pointing out where all the weaknesses in your case are.
Then, you turn it over to the judge, and it’s on the judge to review all the facts that you’ve presented, to review your actual circumstances, and to make a decision based on their assessment of your circumstances in the context of the law. It’s not that a judge is empowered to go ahead and do whatever the heck they feel like in a given circumstance. They have to take in what you present to them, make an assessment of what truly seem to be the facts and actual circumstances of your lives, and then apply the law to those facts and render a decision.
So, that’s what happens when you don’t agree. A judge renders a decision.
By the way, that would be a long time coming. If you have a litigation that goes all the way to a trial and results in a decision by a judge, you can guesstimate, ballpark, a good couple of years for that process. It’s not something that would be ever, ever, ever resolved in a matter of months.
That said, I do want to make a distinction. As part of the litigation process, there may well be issues that need to be resolved, at least temporarily, while you’re going through the process. For instance, you or your spouse may have a need for child support, that you can’t wait two years for a judge to decide a final amount of before you receive a single payment.
So, it’s very common in a litigation process, in light of how long the process takes to resolve all the way to a final conclusion, that one or often both spouses will submit formal requests to the court for them to make temporary decisions on particular issues. And there has to be a time-sensitivity to the issues. A judge or the court is not going to resolve an issue for you because you would just really like it resolved. They will resolve issues where you’ve run out of money, or your spouse has run out of money, and you need to support payments. Or one parent is not seeing the child or the children because the parents can’t agree on a schedule, and that’s totally unacceptable for that to continue for three months, let alone two years. A court would entertain a temporary application for a visitation order or a temporary petition for custody if you and your spouse were at such a level of conflict that you were not even able to agree on a temporary schedule, parenting schedule, between you.
LITIGATION: LEVEL OF ATTORNEY INVOLVEMENT
We’ve talked for each other process about what’s the level of lawyer involvement in the process and what’s the likelihood of time spent in court.
Litigation is the process in which you will have the highest level of lawyer involvement because the steps that are required of you in litigation and in preparation for a trial are so specialized, and detailed, and onerous, that you really need an attorney to guide you through and to carry out the steps required of you in that process.
So, number of attorney hours in a heavily litigated case are going to be higher than any other process that I’ve mentioned.
LITIGATION: LIKELIHOOD OF TIME IN COURT
Similarly, your likelihood of time spent in court is the highest of all processes. You are required to spend time in court. If you are in a litigation, you have to. You have to come to court. You have to, or your attorney has to – but you have to be there, by the way. You can’t deputize your attorney to show up for you while you, say, go to work, which is also an important place to spend your time, but, generally speaking, the court has no patience for that. If it’s your case that’s on in a given day, you need to be there, unless there’s some kind of emergency that excuses you from court. That’s a very quick way to not earn favor with the judge, is to not show up for your court dates.
So, you will definitely spending time and blocks of time in court, likely, every couple of months. If you have a hearing on or, certainly, if you have your full trial on, you will, potentially, be spending days in court. A hearing could certainly take all day or two days. A trial will likely take more than that, so there’s a very high likelihood of time spent in court in a litigation.
LITIGATION: PROS + CONS
Let’s talk a little a little bit about the different pros and cons of the litigation process. Similar to other processes that I talked about, a lot of the aspects of litigation are double-edged swords that can be great in certain circumstances and not so great in other circumstances. So, let’s talk them through.
The high level of attorney involvement. Well, I think, on the one hand, that could be a pro, in that having an attorney involved in your case helps assure you that you understand the different issues that you need to address, that you understand what the law says, to the extent that it’s clear, or the different things that the law says about the particular issues that you need to address. You can have some reassurance that important things are not falling by the wayside just because you aren’t aware, because this is your first divorce or even your second, because you weren’t aware that they need to be addressed. So that’s a good thing.
On the other hand, potential con of attorney involvement is that (a) it’s quite expensive, but I think, (b) –this is something that’s specific to the adversarial system, as well – attorney involvement can lead to a greater polarization between you and your spouse or an exacerbation of the tensions that already exist between a couple who is divorcing. A process that further polarizes you and your spouse can be counterproductive to an ultimate settlement.
Another component that is unique to a litigation – and actually is a component of arbitration, as well, which we’ll speak to in the next episode – is that it is not a voluntary process.
If you and your spouse, say, have a very strong conflict around custody of your kids, and one of you wants a 50/50 schedule, even parenting time between you, and the other does not want that and wants to be the primary residential parent, where the kids live and spend most of their time, and then sees a more, not restricted, but a more limited visitation schedule for the other parent. Let’s say, you’re totally opposed on that issue. In mediation, Collaborative Law, settlement negotiation, if you can’t come to an agreement, you are stuck.
In litigation, you don’t need to come to an agreement. You present your issues for a judge to decide, and the judge will make a decision.
Again, I want to reiterate and emphasize, maybe overemphasize, that will take a long time. If you have a disagreement on custody, it’s not something that you’re going to submit to a court and have a decision on in a span of a few months. It takes a very, very long time to get a final decision from a judge on any issue.
That said, it’s good that that’s available to you if you truly can’t come to an agreement. If, say, from your perspective, your spouse’s position on a particular issue is completely outrageous and unreasonable, and under no circumstances would you ever agree to it, well, you, thankfully, in litigation, have the option to let somebody else decide the issue, and you don’t have to agree with your spouse.
Or, if you just feel unwilling to compromise, on principle, for whatever reason, you don’t have to compromise with your spouse. You can submit the issues to a judge to decide.
Obvious caveat there is that there is no guarantee or, necessarily, even a likelihood that the judge would find in your favor any more so that they would find in your spouse’s favor. So it’s something to keep in mind. But, the fact that litigation is an obligatory process, and that it can impose a resolution on you, can be a good thing in certain circumstances.
I think another good thing about litigation is that even though it takes forever – I mean, it will take years, almost certainly, to resolve – at least there is some end in sight.
So, if you do have, and I talked about this in the context of more voluntary processes, but if you do have a spouse who, it’s not so much that they’re demanding something unreasonable, but they’re just not willing to participate in the divorce process, litigation offers you the opportunity to move forward without their participation, which, if you need to, is a good thing.
Hopefully, it doesn’t come to that, but it’s critical that it be available to you. It would not be fair that if you and your spouse can’t come to an agreement, or if your spouse won’t participate in the process, you’re just stuck being married for the rest of your life.
The other component of litigation that I would say is very much a double-edged sword is that you’re almost never negotiating in person with your spouse.
For a lot of people, I would say most people, they don’t look forward to being in the same room with their spouse talking through issues of conflict between them. That’s not fun. Litigation, the way litigation is organized as a process, it really does not incorporate you and your spouse being in the same room and negotiating issues hardly at all. Sometimes it can, but not very much.
That can be a good thing, but the downside of that, and I think there is a real downside, is that it is so much easier to make more extreme requests and to reject more reasonable requests when you are not looking your spouse in the eye and saying, “I would like this” or “I’m not willing to agree to that.”
I would say the other, and this is more a con, to mention about litigation, is that if you take as a given that just, statistically speaking, litigated cases are overwhelmingly likely to settle by agreement of the parties, it’s not ideal that the vast majority of attorneys’ hours, and thus your expenditure, in a litigated process is spent on preparing for a trial that will likely never happen. At the same time, that may be what is needed in your case to reach the ultimate settlement that you reach.
WHO IS LITIGATION RIGHT FOR?
What is the right type of case for a litigation process? I want to say at the outset, and I’ve said this before, I really think that you should go with your gut. As you get a better sense for the different types of divorce processes that are out there, you will have an instinct in one direction or another, and I think you want to honor that.
I don’t know what the process is for your particular situation, and I can’t prescribe that. But what I will do is I’ll share a couple of attributes of different types of situations that, when I hear a client describe them to me, I think, “Hmm. This case might be a candidate for litigation.”
The first thing would be if you express to an attorney, or you feel, that you are just not comfortable at all in the room with your spouse. And, in particular, if you feel fearful of your spouse.
Obviously, if you’re fearful of your spouse, it’s not appropriate that you’re in a mediation process in person, that you’re in a Collaborative Law process negotiating in person. A settlement negotiation between attorneys who can take your case to court might be an appropriate place to start. Or it might make more sense to go ahead and initiate a formal court case and see where you can get in negotiating a settlement on the side.
I think that if you’re both fearful of or very uncomfortable in the same room with your spouse, and you hit on a couple of these additional attributes that I’ll mention in a second, litigation may be the right place for you to start. And then you make the efforts that you can to settle on the side, but that litigation is the safest bet.
Another attribute would be if your spouse is totally unwilling to participate in a settlement process, be it mediation, or Collaborative Law, or more traditional negotiation between your attorneys. If they don’t respond to requests, they don’t respond to or they won’t show up for meetings, or they won’t share documentation with you, there’s not a lot you can do in a settlement process with one willing participant and another unwilling participant. So, you may need to go to litigation if that is true of your circumstance.
Another key attribute of a case that I think is well-suited to litigation is one in which there is some kind of financial funny-business going on, or you suspect that there is, or you are…I was going to say “distrustful” of your spouse, but I want to acknowledge that, I think, for a lot of couples who are divorcing, there may have been something that’s happened, or things that have happened, in your history as a couple, that have damaged trust between you as a couple. But I want to distinguish that, on a personal or on a relationship level, from a concern that you have that your spouse lying, or hiding assets, or misrepresenting their finances or their situation as part of your divorce process.
For instance, where there’s been infidelity, trust between a couple may be profoundly damaged, but there’s still a sense that neither person would be willing to lie as part of a legal process. And I encourage you to make that distinction. You don’t have to have trust in your spouse as a person, as a partner, to be able to go through a settlement process like mediation, or Collaborative Law, or a settlement negotiation, but you do need to feel that you can count on them to accurately and honestly disclose information that’s relevant to the process.
If you can’t do that, if you feel that your spouse is absolutely hiding assets or trying to be dishonest to advance their interest in the divorce process, you’re probably better off in litigation.
I will say that litigation is not a magic bullet. It’s not like a judge, as soon as you walk into a courtroom, has a crystal ball and knows what money your spouse hid in a Swiss bank account (if that happened). They don’t. The best that your lawyer can do is to retain some kind of forensic accountant to try to investigate your spouse’s assets and income situation. That is, sometimes, a part, a very expensive part, of a litigation process, but it’s not perfect.
There’s no guarantee that you will get to the bottom of your spouse’s true financial situation if you’re dealing with somebody who is willing to lie as part of a legal process. That’s just a challenge that I would recommend, if you feel that, if you feel that you’re facing that, that you really explore with your attorney and get some realistic feedback on what you’re going to be able to figure out as part of a litigation process, and what you’re not.
The good thing about litigation in that kind of case, though, is that it doesn’t matter if your spouse doesn’t want to share their bank statements. They will be obligated to share their bank statements. If they won’t produce them, you can use mechanisms, formal mechanisms of the court, subpoena mechanisms, to go straight to the bank and say, “Excuse me. We have permission from the court. Please send us these documents,” and you can get them. That’s a great part of the litigation process, if it’s necessary. If you feel like your spouse is trying to be dishonest in the process, then you might be the right type of case for a litigation process.
I would also say if you have someone, a spouse whom you can already see, will not willingly abide by agreements you make during the process… So, if you say, “Look, we haven’t figured out what child support will be, but just for the interim, as we’re negotiating the settlement, we agree that you’re going to pay me X amount of dollars per month.” You want to have a reasonable amount of confidence that your spouse is the type of person who will honor that obligation.
I don’t mean that it should just be an informal oral agreement. It may well be reduced to writing. If you’re going to engage in a settlement process and not have a litigation ongoing at the same time, you want to have some level of comfort that if you come to an agreement with your spouse, it’s reasonably likely that they’re going to honor that while you’re negotiating.
You don’t want to be in a negotiation process and have your spouse pull the rug out from under you and, all of a sudden, cease doing what they have committed to doing while you’re in the negotiation process. That would leave you scrambling and having to race to file something in court depending, I mean, it all depends on what your financial circumstances are, if it’s a financial issue.
But, that’s related to this other attribute that I do flag for clients when they describe it to me as something that might really qualify their case for litigation more than any other process, which is: Are there likely to be emergency issues that arise in your case.
I know that, by its nature, the future is not something that you can predict. But have there been circumstances, historically, where you and your spouse have had emergencies to deal with? Where the police have been called to your home, where you or your spouse has needed to be hospitalized, or your children has needed to be hospitalized?
These kinds of issues come up a lot or more frequently in couples where either one or both spouses are addressing issues of mental health, addressing issues of addiction, where there’s been a history of abuse either between the couple, or between a parent and a child or children. Those tend to be cases that are more appropriately handled in the court system.
That is not to say that if you have a history in your family of addiction, or there has been some abuse in the past in your relationship, or between you and a child, or your spouse and a child, that you should take all the settlement processes off the table and go straight to court. Not at all.
What I mean is if there are presently untreated issues of really acute addiction, if there is ongoing abuse, if there are untreated and acute mental health issues, you may need to be in a setting, like the court, like a litigation process, that is more able to address emergencies as they arise.
A mediation process, a Collaborative Law process, you’re working with people, generally speaking, who can’t litigate for you. So, if you have an emergency come up, unless you’re confident that you and your spouse can come to an agreement about how to resolve a particular emergency, you may be better suited to be in a litigation process.
That said, what I will say is that, in a mediation process, if you’re working with a consulting attorney who litigates, that person, in the event of an emergency, would, in theory, be able to take you to court the next day if you needed to. In a settlement negotiation process, if you’re working with attorneys who do litigate, you can be working towards settlement and drop out of that process in the event of an emergency.
So, again, it’s not to say that if you identify with any of the attributes I just mentioned, you should start litigation and not consider any other process. It’s just something to think through and, more than anything, to talk through with an individual attorney or mediator that you consult with. To raise these issues and say, “What process do you think is appropriate for me and for myself and my spouse as a couple? What process is going to serve us best?”
That concludes our Episode 7 on litigation. Next up on Episode 8, we are going to be talking about arbitration, sometimes referred to as private judging. I will look forward to continuing the conversation with you in that episode. In the meantime, thank you so much for tuning in, and I will speak with you soon.