Divorce Litigation and the Five Key Considerations – An Overview
May 25th, 2021
Divorcing couples are immediately faced with a decision about how to proceed with the divorce process. It is important that they begin by consulting with divorce experts to help them determine what options are appropriate for their situation, including litigation. That determination includes thinking about the five key considerations:
The very first consideration on the list- communication – is the place to begin. Why? Because how each couple communicates dictates the divorce process they are equipped to handle. In relationships involving active bullying behaviors, threats or abuse, it may be best to reduce or even eliminate communication between the couple. On the opposite extreme is the situation where one spouse refuses to confront the reality of divorce and discuss it with the other spouse. In either situation litigation – hiring attorneys and filing in court at the start of the divorce – may be their only choice. Spouses who can avoid either of these extremes have other options.
I tell clients that litigation is like a board game that they have never played before, but their attorneys have been playing for years. The tendency, therefore, is to let the attorneys play the game for you. The attorneys often handle the strategy, communications and negotiations, leaving the spouses separated and on the sidelines. This accounts for most of the higher costs associated with divorce litigation. The best litigated divorces from a budget perspective will therefore involve spouses who are able to effectively communicate with one another. Those couples who come to this realization early in the divorce - before they get an invoice from their attorney – can protect their budget.
From mental health to finances, experts in various fields assist people going through a divorce. Due to the higher cost of litigation, those on a tighter budget may not be able to utilize many of these experts. Those who need expert help and can afford it can expect to pay more for expertise in a litigated divorce over other divorce processes. Why? Because both sides in litigation usually hire their own experts to support their positions, giving the lawyers more to argue over.
Litigation can also result in a lack of confidentiality. If you have a court hearing, anyone can attend it and listen in. Even in the age of Zoom hearings Court proceedings are finding their way on to YouTube. Records and documents filed in court can be searched for and acquired by prying eyes long after the divorce is final. This sort of potential disclosure of private information can leave people feeling exposed. To make things worse, litigation can encourage each side to bad mouth one another in this public forum in order to gain advantage.
Divorce is difficult on children. But it does not have to negatively impact their long term physical and mental health. Studies have proven that negative health consequences for children of divorce is caused by conflict. The more conflict and the longer it lasts the worse it is for the children. Protecting children from conflict during a litigated divorce is a significant challenge, because the court system is a conflict based system. Protecting children from conflict after a litigated divorce is also harder because a litigated divorce can increase the conflict between the parents. Reducing conflict requires that both parents make it a priority during and after a divorce.
Primarily, litigation offers two basic advantages to people - it offers protection from abuse and offers a sure-fire way of getting a divorce started, even if one spouse is uncooperative or wants to avoid it. However, there are alternative less combative ‘out of court’ options available in the shape of mediation and collaborative practice that may be more suited to your situation and needs.
Cleland Collaborative Solutions offers a FREE one-hour consultation to take you through the options, the benefits, and effects of all paths to provide you with the information you need to make a smart decision about divorce. For full details please call (586) 876-9165