When Is Divorce Litigation Necessary?

By Divorce.com staff
Updated Nov 16, 2022


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Divorce is rarely easy. Some couples decide to divorce amicably and work together to make the process as simple as possible, but this is the best-case scenario.

While it’s in everyone’s best interest to collaborate, smooth sailing won’t always be the case. You may need to use options like divorce litigation to complete your divorce. Here’s what you should know about your options before you begin the process of divorce litigation.

What Is Divorce Litigation?

Divorce litigation can have two meanings.

First, it can mean taking your divorce to court, where your lawyers and a judge will work together to create a final outcome for your divorce. Most people call this process “divorce court.” For the purpose of keeping things simple, we’ll refer to this process as a court divorce.

Next, divorce litigation usually refers to an arbitration and negotiation process conducted behind closed doors, which is a more discreet form of litigation. When partners can’t agree on the terms of their divorce, they can each hire a lawyer. Each lawyer will act to advocate for their client’s best interest. Your lawyers will ask you each what you want to negotiate with the other lawyer to come to compromises.

Sometimes couples are present for these negotiation conversations, but many times they aren’t. Some people choose to send their lawyer in their place to avoid contact with their spouse.

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What You Should Try Before Divorce Litigation?

There are two things you can try before you attempt divorce litigation. Both of these methods are less stressful and less expensive than getting lawyers involved. If you and your spouse can learn to communicate (if for no other reason than to spare yourselves the financial and emotional stress of a lengthy divorce), you can try these methods first.

Uncontested Divorce

An uncontested divorce is an option for couples who are able to agree on every detail of their divorce settlement. It may sound impossible, but it happens more often than you might think. Some couples attend family therapy or work together privately to improve their communication skills. Then, they take what they learned about communication and use those skills to discuss their divorce.

Uncontested divorce paperwork can only be filed when you’re both completely on the same page about everything. To make an easy way through even easier, you can complete the paperwork in a few minutes online. (You can even file online in some states.) If you can’t file online because of state laws, you’ll bring your completed paperwork to the court and pay a filing fee.

A judge will review your case and approve it if your divorce settlement seems reasonable and balanced. You’ll briefly answer a few questions in court, and you’ll be awarded a divorce decree.

This process is the least expensive, and it can be completed in a matter of weeks.

Mediated Divorce

Mediated divorce is a discreet way to receive help in making important decisions for your divorce settlement. You’ll work with a divorce mediator who is neither a lawyer nor a judge. A mediator can’t require anyone to do anything or make decisions for you. The mediator’s role is to listen to the requests of both sides and inform them of their options.

Your mediator is an impartial third party who will tell you what can be done to satisfy both of your requests or how to find a suitable compromise. Essentially, your mediator is helping you work towards an uncontested divorce. Your mediator can help you complete your divorce settlement before you submit it to the court.

When Should I Start Divorce Litigation?

Just like divorce itself should be a last resort, litigation should never be the first option. You should always attempt to communicate your way through a divorce. We recommend saving litigation for situations where mutual communication isn’t possible or when it may be dangerous to communicate with your spouse.

If you’re sure that uncontested divorce or mediated divorce aren’t options, you’ll have to escalate the situation to a litigated divorce.

Is Divorce Litigation Expensive?

Divorce litigation is expensive, and it can take years to complete. You’ll be paying your lawyer during the entire stressful, drawn-out process. It may cost less than a traditional divorce court, but it’s still one of the most expensive ways to get divorced. You may spend as much as $20,000 when you incorporate a lawyer into your divorce.

How Does the Process Work?

Private arbitration is the step that most couples will take before they bring their divorce to court. Each partner hires a lawyer, and you’ll both have private meetings with your lawyers to discuss how you’d like to approach your divorce settlement. You may need to provide your lawyer with important documents, like bank statements or documents from mutual investments like mortgages.

Then, your lawyer will tell you what your options are. There are things you can and cannot request in a divorce. Your lawyer will tell you what the most likely best case scenario will be and give you advice.

Both lawyers will arrange dates and times and meet with each other and discuss your best interests. You’ll be kept informed throughout the process. If you choose not to attend these meetings, your lawyer will tell you what was discussed and help you make important decisions.

Litigation can create an adversarial environment that may affect your children and your personal life, so it’s important to be mindful of the way you approach the situation. During divorce litigation, you are technically at battle with your spouse. You need to limit communication with your spouse to avoid revealing your legal strategy.

How Long Does The Process Take?

Theoretically, divorce litigation could go on forever. It only ends when both sides reach an agreement or decide to take the case to family court. Many divorce litigation processes will wrap up within a year, but it’s not unheard of for complicated cases to take up to five years. This scenario is rare, but it’s one you’ll need to prepare for if the circumstances of your divorce are extensive.

For complicated divorce litigation cases, it’s important to learn where to make concessions and compromises. If neither side moves on an issue, the case will reach an unsolvable impasse that can linger indefinitely. When you reach these impasses, it’s better to assume that private litigation isn’t an option, and you may need to take the situation to court.

What Happens If Private Divorce Litigation Doesn’t Work?

If divorce litigation doesn’t work, you’ll need to pursue a contested divorce in court. You’ll continue to pay your lawyer for their time and services. Escalating the situation to a contested divorce in family court will essentially restart the process, this time with a judge involved.

Contested divorces in court can last several years, but they will eventually end. The judge will decide the final outcome for decisions where a couple can’t agree. It’s likely that neither party will be perfectly content with the outcome of the divorce when decisions are made by a judge rather than by the couple. This only emphasizes the importance of practicing good communication during a divorce.

What Happens If Private Litigation Does Work?

If you can privately litigate your divorce and come to terms you both agree with, you’ll write them into your divorce paperwork. You’ll file the paperwork with the court, where it will be reviewed by a judge.

You’ll wait for a court date, where a judge will review the details of your divorce with you. Your court date will depend on your local court’s calendar. Some couples will be able to get a court date within weeks, while others may have to wait months. There isn’t anything you can do to expedite the process.

Litigation can sometimes lead to unusual or unconventional decisions relating to your divorce settlement. The judge may have questions about the fairness of the document and may ask each spouse to confirm under oath that they fully consent to the agreements made in the divorce paperwork.

If the judge hears both sides and feels the agreement is fair, you’ll be granted a divorce. After you receive your divorce decree, you’re officially divorced.

Learn about divorce online with Divorce.com

Divorce Litigation Can Be Helpful, But It’s Best to Avoid the Process

Before you rush to hire a lawyer, give yourself a minute to assess your feelings: Do you really want to endure the process of divorce litigation or divorce court? Would that really be helpful to your family? Is it a wise use of your time or money?

Many couples who step back and carefully consider the situation would prefer to use a less adversarial method of divorce. Mediation may be a better solution than hiring a lawyer.

However, if you and your spouse are unable to reach an amicable agreement, divorce litigation is an option to help both parties iron out the details of their split. At the end of the day, litigation isn’t always a waste of time and money — it can be a useful tool where all else fails.

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