Divorce attorney considering evidence

The Role of Litigation in Divorce

The traditional approach to divorce is litigation, which is primarily court based. In other words we either go to trial to have the court decide the terms of the divorce, or we settle the case based on what we think the court would do if we went to trial.

While other methods have been developed to help divorcing couples resolve their issues through more cooperative methods such as Mediation and Collaboration, many couples still litigate their divorces for a variety of reasons. This may be because of a history of domestic violence, an unreasonable spouse, or just unusual issues that are difficult to resolve.

Sometimes, a Divorce Litigation is Unavoidable

In litigation, our roles as attorneys are to organize the case for court, to negotiate for you with the opposing counsel, and to argue for you in court. A big part of our work is preparing the case for trial. Whether or not we expect the case to go to trial, the trial preparation is the foundation for any negotiations, and also needs to be completed in case negotiations break down and the case does in fact need to go to trial.

There are several major steps to the litigation process. At the beginning of the case a decision needs to be made whether a hearing for temporary orders should be held. Often there is a need to have the court make orders on interim arrangements pending trial – issues like who should live in the house, how bills should be paid, what child and/or spousal support may be needed, how parenting should be shared, and whether any restraining orders should be put in place to protect the parties.

Once we have some kind of short term arrangements in place, either by agreement or after a hearing, we move on to the discovery phase. Discovery basically refers to the process of gathering information. This may be having our client gather records for us, but it also involves requiring the other side to provide information as well. This may be documents in their possession, or answering questions about various matters. This can be anything from gathering financial records like paystubs, tax returns, and bank statements, to having a person answer questions about their memory of certain events.

Settlements are Still Possible at Any Point

Once the divorce attorneys feel that they have a complete picture of the information they need to try the case, and that they have developed the legal arguments that spring from the facts they have gathered, they can move to the negotiation phase. This may start out with some simple phone calls and letters back and forth, but typically a formal settlement conference will be needed to reach an agreement on the terms of the divorce. Most often this settlement conference is done with a neutral evaluative mediator.

In this form of mediation, the mediator will listen to both sides’ evidence and arguments and then recommend a settlement based on what the mediator believes would happen at trial. The object is to reach agreement on what the likely outcome is while avoiding the high costs of actually going through a trial. The settlement conference may go on all day as the mediator moves back and forth between the parties alternately pushing his or her view as to how the case should settle and conveying offers from one side to the other.

If the case fails to settle at the settlement conference, then the final trial preparations begin. This involves lining up witnesses, preparing the questions that will be asked of witnesses, organizing the trial exhibits, drafting legal memorandum for the court, drafting proposed orders, etc.

What Happens at a Washington Divorce Trial?

A divorce trial can run anywhere from a day to weeks in length, depending on the complexity of the issues and number of witnesses needed. Sometimes some issues have been agreed prior to trial and only some other issues are reserved for the court to decide. Once the court has heard all of the evidence and arguments from both sides, it issues an oral ruling on all issue that have been submitted to it for decision. It is then the job of the attorneys to draft that oral ruling into a set of final orders for the court to decide. If the attorneys are not able to agree on exactly what the court intended on a particular point, they may have to return to court to request additional guidance.

As you can see, litigation can be a long and complex undertaking. In King County, it usually takes just under a year to get from initial filing to trial. However, most litigation cases do settle prior to trial, though often just in the last month or two before the trial date because of all the work that must be done to get ready for the settlement discussions.

The Lawyers at Seattle Divorce Services are Always Here for You

For more information about the litigation option, see the page on our website on our Family Law and Divorce Litigation Attorneys. For information about your various divorce process options, see Your Divorce Options. Remember, our divorce attorneys are available at every stage of the divorce — even if you’re not sure you want to file. Schedule a consultation, and we can help you understand your options.