An Explanation of Divorce Litigation and its Advantages

What is litigation?

For some, the word “litigation” may conjure images of tense courtroom scenes, dramatic cross-examinations or stern judges. But litigation does not necessarily mean a contentious and protracted courtroom battle. 

Rather, in the divorce context, litigation is a process by which each party to the divorce is represented by an attorney during the case. Each party’s attorney is there to advise the party, advocate on behalf of that party, and counsel the party through the divorce process. The attorney is there to help the party successfully and favorably resolve the case either by negotiating a final settlement agreement, or, if necessary, at trial.

If I litigate my case, do I need to go to court?

It depends. Only if you and your spouse are unable to resolve a dispute will you need to go to court. It is unlikely you would need a court trial to resolve your case. More commonly, court appearances are for issues related to temporary support, parenting plan disputes, and discovery disputes. Almost always, however, efforts are made to resolve a pending issue before going to court. If court intervention is necessary, at least for the foreseeable future, as a result of COVID-19, a physical court appearance will not be required. Court proceedings are now conducted virtually via Microsoft Teams.

Will a judge decide my case? 

A judge will only decide your case if you and your spouse cannot agree. Ninety-five percent of cases settle before trial, meaning that a judge decides the outcome in only a few cases.

What are the advantages of litigation?

• You have your own attorney to explain the process and answer any questions you may have along the way. 

• Your attorney can advise you as to possible courses of action and strategize with you as to which is the best way to achieve your objectives. In addition, your attorney can advise you as to Connecticut law and likely outcomes if the case were to go before a judge. Not all can offer this; a mediator for example, is prohibited from giving the parties any legal advice.

• Your attorney will make sure that your spouse has provided necessary financial information. Relying on your spouse’s explanations, without reviewing backup documentation, is not recommended, especially if you are not fully aware of your family’s finances. You do not want your spouse to take advantage of you in the financial settlement.

• Your attorney can negotiate a potential settlement on your behalf. When emotions are running high, or if your spouse is a bully, it is helpful to have a strong advocate in your corner.

• Other methods of dispute resolution, including mediation, are still available to you and your spouse. Whereas mediation without an attorney may last six months or more, mediation with an attorney representing you may be only a couple of hours, and the process can be much more streamlined and less emotional.

Can my divorce be amicable if I decide to litigate my case? 

Yes. A litigated divorce case does not need to be contentious or nasty. Remember that you and your spouse are in control of the process.