When Do We Need to Litigate?


Some couples are able to engage in a peaceful dispute resolution process such as Collaboration or facilitative Mediation to work out their own divorce agreements. However, for other couples that may not be a realistic option, in which case, it may be necessary to litigate. Litigation means using the courts to resolve the dispute.

Lack of Agreement: Employing a non-litigation dispute resolution process requires the agreement of both parties. If your spouse is not willing to engage in an alternative process like Mediation or Collaboration, then you may not have a choice. Litigation is the one dispute resolution process that you can initiate without your spouse’s agreement or cooperation.

Inability to Cooperate: Some couples just can’t work with each other. If there is at least a willingness to work with each other, we can often provide the couple with enough conflict management tools to help them get through the dispute resolution process. But if at least one person is not motivated to TRY to cooperate, then the process is probably not going anywhere. Sometimes there are personality or mental health issues that simply make it very difficult for one person to “get” the other’s point of view, or maybe even to think very rationally.

Lack of Trust: Alternative dispute resolution requires a certain degree of trust. This kind of process generally relies on voluntary and complete exchanges of information, including information about assets and debts. If you believe your spouse may be hiding assets, or may otherwise not play fair, then you may need the protection of a court based process.

DV or Substance Abuse: Domestic Violence or substance abuse issues may be able to be dealt with in an alternative process if both parties are willing to admit the problem exists. However, if a person will not admit that they have such a problem, it would be very difficult to deal with it in a voluntary process. We can’t talk about solutions to a problem we don’t all agree that there is a problem.