Divorce litigation is the process of bringing legal claims before a judge and having the judge make the final decisions about issues concerning a couple’s children, their assets, and family support. There are circumstances where divorce litigation may be necessary, such as in cases of abuse, hiding of assets, ignoring support, and parenting responsibilities. Further, when parties are unable or unwilling to agree on the major issues in their divorce, litigation is a necessary dispute resolution procedure.
Petition and Service of Petition. The litigation process begins with one party filing a petition for dissolution of marriage with the clerk of the circuit court. Once the other party is properly served with a petition for dissolution, he or she has thirty days to either file an appearance on his or her own behalf (pro-se) or have a divorce attorney file an appearance on the party’s behalf.
Discovery. Discovery is the legal process by which the parties seek to obtain information from one another. Typically, the information sought through discovery is financial information and information about children, parenting, and each party’s personal activities. Discovery is commenced by sending the other party written interrogatories (written questions), requests to produce relevant documents, and by issuing subpoenas (requests for information) to other people and institutions, which frequently include banks and a party’s employer. Discovery may also include depositions (oral questions under oath).
Petition and Motions. Divorce litigation is typically comprised of a variety of smaller disputes under the umbrella of a petition for dissolution of marriage. It is not uncommon for a litigated divorce to include hearings on child support, child custody, spousal support, and a host of other actions. Each separate petition and motion may require additional trips to court and further discovery. It is useful to think of divorce litigation as a method to resolve a series of smaller disputes that are hindering the divorce settlement.
Pre-Trial. A pre-trial conference is typically a meeting with each party’s divorce attorney and the judge in the judge’s chambers and without the parties present. Before a pre-trial conference, each party typically will submit a pre-trial memorandum to the judge. The pre-trial memorandum will list the issues in dispute, each party’s position and the legal authority supporting his or her position on the issues. At the pre-trial conference, the family law attorneys meet with the judge without their clients present. The judge typically makes recommendations regarding the issues in dispute. However, the judge’s recommendations are not binding on either party.
Trial. If the parties are unable to reach a mutually agreeable settlement after the judge has made his or her pre-trial recommendations, then they will proceed to trial. At trial, each party has the opportunity to present evidence, under oath, in support of his or her position. At the end of the trial, if the parties still have not reached an agreement, the judge will decide the outcome on all of the issues in dispute.
When a client pursues litigation, he or she is not necessarily seeking to have the court settle all matters in his or her case. Indeed, many couples only litigate a handful of issues and are able to agree on the rest. Litigation is an important tool in many divorces in that it prevents stalemates and even has the potential to encourage compromise.