When Is Litigation Needed In Divorce?
Litigation is the process of submitting issues to the court for decision.
While we believe that our clients are better off when we can keep conflict to a minimum and help our clients reach agreements out of court, sometimes litigation is needed.
Litigation is generally needed if one side is unwilling to work cooperatively. This could be your spouse, or it could be your spouse’s lawyer. If they prefer to fight, then we are likely headed to court. Also, many attorneys prefer to maintain a litigation posture while negotiating (power-based negotiation).
Litigation may well be needed if one side is unreasonable.
Lawyers generally have a fairly good idea of what a judge would decide if the issue went to court, which helps us resolve many issues outside of court. However, if one side is insisting on a resolution that is far outside the usual expectations, then often the solution is to just let the court decide.
Sometimes litigation is needed if there are unusual issues that the two sides see very differently. If the issue is unusual, then it may be harder to predict how a court will rule on it.
This makes power-based negotiation more difficult, so again it may be necessary to let a court decide. However, if the parties are willing to cooperate in finding a solution that works for both, then we may still be able to keep it out of court.