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Divorce Choice - Litigation

Posted by attorney Garrison Klueck

Litigation is the traditional form of ending a marriage through a legal process. Most often both parties are represented by two different attorneys. The process is adversarial and often each party strives to get "at least a little bit more than half" of the community estate. The fact finding or "discovery" process is also adversarial. Although the law says that both parties have an obligation to reveal what they know about the assets and debts of the "community estate" (generally what the parties "owe and own" as a result of the marriage), the attorneys usually reveal only the minimal facts that they absolutely have to reveal. In California, there are often multiple short hearings called Order to Show Cause (OSC) hearings and each case has the potential of concluding in a trial during which witnesses are called to testify under oath on the witness stand. Although many of the issues in a litigated divorce are often resolved by a stipulation or agreement, the ultimate decision maker in a litigated divorce is a Family Law Judge. This form of divorce is the most appropriate when the parties are ultimately very adversarial with each other and wish to have an impartial, third-part tribunal (a Judge) decide the issues as to the termination of the marriage. Parties often so mistrust each other that no other form fits the situation except an overtly partisan one. Parties in a litigated divorce usually have a sense that their attorney is "their warrior" going to battle with the other side. Those parties usually feel that their warrior/attorney is defiantly "on their side" in their battle with "the other side" and these feelings are appropriate and needed with certain couples. Due to the adversarial nature of the proceedings, a fully-litigated divorce is generally the most financially expensive.

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California State Bar Link to Board-Certified Specialists

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