Litigation is the traditional process, whereby both parties use the court system and procedures to resolve their dispute. Either each party hires an attorney, or one or both elect not to hire an attorney. A single attorney cannot represent both parties in a family law matter. The attorney will provide legal advice and represent the positions of the client in negotiations and court hearings.
This process is considered an adversarial process in which each attorney advocates positions based on the client's personal wants, needs and viewpoints. The parties communicate primarily through their attorneys, rather than directly with one another, regarding their positions, proposals and counterproposals on the issues in their family law matter.
The process may involve the use of formal legal procedures, known as "discovery," to secure financial and other relevant information. Discovery may include the use of depositions (a formal taking of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues. Further, each party may hire experts to support their positions. These experts may include psychologists, real estate appraisers, personal property appraisers, business valuation specialists, accountants, and others.
If the parties dispute the legal custody or physical placement schedule of their children, the court will appoint a third attorney, called a Guardian ad Litem, to participate in the case as an advocate for the "best interests" of the children.
Ultimately, if agreements are not reached, parties and other witnesses testify before a judge who makes a ruling on each disputed issue. Most litigation divorces are eventually settled. However, even if settled, there may be substantial time, money and emotion spent in the conflict prior to the settlement.
For some people, the traditional litigation approach is preferable because they do not believe they can work directly with their spouse to resolve the issues, and there is a feeling of security using the court methods and procedures to resolve the dispute. The traditional litigation approach has certain deadlines for accomplishing tasks, but the court's schedules sometimes delays resolution for more than one year from filing. Some couples simply do not have a great deal of trust with the other spouse and would prefer to use the court-sanctioned procedures to obtain relevant information and to have the option of imposing sanctions against the other party for "misbehaving."
The traditional litigation approach may not be preferable for parties who can communicate directly about resolving their issues. Because the range of solutions in traditional litigation is limited, the approach is not preferable for couples with complicated emotional, personal, child, or financial circumstances.
Traditional litigation also has the disadvantage of being inefficient because there are simultaneous efforts to settle the matter and prepare for trial. The traditional litigation approach can be expensive when all of the court procedures are followed. A considerable amount of time and money can be spent only to have the case settle prior to trial. If the matter does go to trial, the final outcome may be unexpected. The courts are limited to how they can resolve an issue. The outcome may not meet either party's needs, and some parties will appeal the court's decision to the appellate courts.
Further, both parties often find that they are dissatisfied with the outcome and are likely to return to court after the divorce to change the outcome or resolve disputes.
All of the attorneys at Burbach & Stansbury S.C. are experienced in traditional litigation, both inside and outside the courtroom. The firm also represents those clients who need to have their litigated result heard by an appellate court.