From Courtship to Court. Do you need litigation?

Posted on Mar 1, 2013

by Lee Chabin, Esq.

       Here are some additional thoughts from Mr. Chabin on the value of the Collaborative Practice approach to divorce: http://www.nyparenting.com/stories/2013/2/fp_divorcecolumn_2013_02.html

             Every divorcing couple has a choice to make:  How will we get divorced?  What process shall we use?

The answer can have tremendous repercussions, emotionally as well as financially for your children as well as for yourselves.

In this column, I will discuss one process:  Litigation (going to court).

Litigation is usually the most expensive, antagonistic and emotionally difficult process for ending a marriage.  I’m firmly convinced that many couples go this route when they don’t need to – and that they would choose otherwise if they fully understood what litigation involves; and the alternatives to litigation.

Be aware that litigation can mean the following:

Diminished power to decide:  If no settlement is reached, a judge will decide matters for you.  Because judges have very large caseloads, they rarely have time to learn a lot about you and your family, to consider many options, and tailor solutions that best serve your needs.  After the divorce, at least one party is often disappointed and bitter about the judge’s determinations.

In most cases, actually, a judge does not make the final decisions; the parties settle before it comes to this.  Yet, the emotional and financial costs remain enormous.

Other professionals:  The court often appoints a psychologist to interview parents and children and to report findings to the judge; and, a “lawyer for the child” to represent the children – just as you may have a lawyer representing you.  Each of you may decide to hire experts, often to value a business, house, or other asset.

Time:  A litigated divorce is likely to take at least nine months.  If any or all of the “other professionals” get involved, expect it to take longer.

My own divorce, which (thankfully!) had a small cast and never reached the trial stage, lasted over two years.

Money:  The costs can be staggering:  Your lawyer:  probably $200 – $600 per hour; your spouse, the same.  Additionally, your lawyer may charge you for phone calls, travel time to the courthouse or meetings, time waiting in court, as well as research, motions written and filed, depositions, preparation of witnesses, etc.

The court-appointed psychologist and lawyer for the child, along with other experts all come with a fee.

Emotions:  Stress and anger usually grow greatly during litigation, which is an adversarial process.  It is about winning and losing; and even the ‘winner’ is usually a ‘loser’ as well.  Heightened emotions can cause once loving spouses to say and do things to one another that may never be forgiven.

Plus, there are worries about money, children, moving on, moving out and much more.  The longer the process takes, the greater the strain – and not only on the adults.

Impact on children:  The more stressed, worried and angry you are, the less support you can give them.  If you’re yelling and badmouthing the other parent, the kids can’t help but suffer.  Children have their own fears and anxieties, and may withdraw, act out, or be hurting without your even being aware of it.

­­With these considerations in mind, why do many of us choose litigation?  One answer is a lack of information; do you know the alternatives?  During separation or divorce, when life is so difficult, it can be hard to learn more and think about which option will best serve you and your family.

Another explanation is the ‘chorus effect’ – what we hear from others.  Well-intentioned family members and friends often know less than we do – certainly about our needs and situations.  They may give poor advice that makes us more fearful and angry.  We may then act hastily.

While going to court may be necessary for some people – for example, where one spouse refuses to consider mediation or collaborative divorce – is it necessary for you?  For most readers, I doubt it – particularly if having a respectful and civil relationship after the divorce is important, as it is when there are children involved.  Or even if you ‘just’ want to save time, money and aggravation.

Disclaimer:  All material in this column is for informational purposes only and does not constitute legal advice.  Discussing your particular case and circumstances with a legal professional before making important decisions is strongly encouraged to safeguard your rights.