Insight

Divorce Litigation and Why to Avoid It

There are three ways to get divorced—two of them should be avoided if possible—accepting, of course, that there are some spouses who insist on litigation and a trial.

Divorce Litigation
SP

Stephen Cullen and Kelly Powers

June 1, 2017 12:45 PM

There are three ways to get divorced—two of them should be avoided if possible—accepting, of course, that there are some spouses who insist on litigation and a trial.

Any experienced family lawyer will ask you at the outset if you would agree to resolve your divorce by way of an agreement. You can agree on everything in such an agreement: custody, child support, alimony, division of marital property. Then, when the requisite time of separation has passed, you proceed to a very short hearing at which your agreement is incorporated or merged in your divorce judgment. Often your spouse does not even have to attend.

Of course there can be intense negotiations that go into such an agreement. Your lawyer will need all the financial information from your marriage in order to negotiate an agreement on your behalf. You may also have to go to mediation to get the agreement done. But this approach is so much better than contested litigation. It’s not inexpensive, but it’s also not likely to bankrupt you.

If you have to litigate your divorce, make sure your lawyer explains all the steps the court will require you to meet, the strategy to be adopted, and the costs. Most family courts have management plans for divorce cases that set deadlines for the exchange of financial documents and other “discovery.” Often such plans require court mediation before any interim hearings or any trial. It is all very expensive.

If you have to go to trial your case may not be heard by a specially trained family law judge who practiced as a family lawyer before becoming a member of the bench. Many courts rotate the assignment of judges—some of them have little family law training—to sit on the family trial rotation for up to a year. So your lawyer may have to educate the judge.

If you lose at trial (or even if you win), then you may have to move up to the appellate level. Unlike courts in most other countries, appeal courts in the United States do not hear new evidence. The appellate courts are courts that make their decision based on the record made in the trial court. They only hear what happened in the trial court below, and the appellate courts must consider the trial court’s decisions based on certain standards they must apply depending on the issues—did the trial court abuse its discretion; was there a legal error; is this the type of case where the appellate court must look at the whole “record” from top to bottom. Experience teaches that most appellate courts affirm the trial court or send the case back down to the trial court for them to revisit whatever issue needs to be addressed.

This takes us back to getting divorced by agreement. The costs of litigating your divorce can be enormous, and an appeal can be even more expensive. So do all you reasonably can to work with your soon-to-be-former-spouse. And keep your share of the marital funds for yourself—or better yet, your children.

Disclaimer: This is for general information and is not intended to be and should not be taken as legal advice for any particular matter. It is not intended to and does not create any attorney-client relationship. The opinions expressed and any legal positions asserted in the article are those of the author and do not necessarily reflect the opinions or positions of Miles & Stockbridge, its other lawyers, or Best Lawyers.

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Stephen J. Cullen and Kelly A. Powers have established one of the leading international family law practices in the United States. As co-leaders of Miles & Stockbridge’s family law and private clients practice in D.C., they work on complex international divorces, custody, and financial relief in the United States and around the world. They also are well-known for their work in addressing child abduction issues. To learn more, visit the practice’s blog.

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