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Divorce Litigation; the Unfortunate Truth

Posted by attorney Amy Stutzke
The media frequently touts the benefits of mediation and collaborative law as a means of resolving divorce and other family disputes short of litigation. While these methods of alternate dispute resolution are indeed valuable, and frequently result in fair settlement packages at a reduced cost, they are not always appropriate or effective. For instance, the ethical rules governing mediators prohibit mediation where a Final Restraining Order has been entered against a spouse. Even in cases where there is no such order, there might be such a power imbalance in a relationship that the integrity of the entire process is jeopardized. Some manipulative spouses view the mediation process as an opportunity to induce a quick, yet unfair, settlement under the guise of being the “good guy" for foregoing litigation. Certain tactics include creating a false sense of urgency about the divorce, inappropriately hanging “custody" over a primary caretaker’s head, and/or exploiting the informality of mediation as a means to conceal assets that would otherwise be disclosed through litigation. The presence of the parties’ private attorneys during mediation does not always remedy the situation, as one spouse may be extraordinarily stubborn, refusing to compromise on any one issue out of pride or ill will. In these and other cases, pursuing alternative dispute resolution avenues might simply amount to a waste of time and money. Even worse, where collaborative law is utilized, only to eventually prove unsuccessful, both parties must start over with completely new attorneys, causing the re-creation of not only “the wheel", but additional attorney’s fees. The unfortunate truth is that sometimes divorce litigation is absolutely necessary, whether amounting to pendente lite motion practice or a full-blown trial. Pendente lite motions are applications filed pending the divorce but before final judgment. Examples of issues implicated in these motions include support for a spouse and/or children who have been financially abandoned, temporary custody of minor children, a determination as to which party should get to reside in the marital residence, or even a counsel fee advance in order to “even the footing" between spouses with disparate incomes. These motions serve the dual goals of obtaining much needed relief and “setting the tone" for the pending proceedings, specifically, making your spouse fully aware that you will not be bullied and are emotionally ready to protect and enforce your rights if you must. Such pre-trial determinations also serve to facilitate a fair settlement down the road, as pendente lite orders often give a glimpse as to the Judge’s inclinations and what result might reasonably be expected at trial. While only a small percentage of divorce cases are actually tried to conclusion due to time, expense, and the desire to avoid unnecessary discomfort and embarrassment, there are some cases where a trial may be unavoidable. These cases include not only significant bona fide disputes, but cases where, for example, a vengeful litigant is dead set on putting her spouse on the stand, or has been unwittingly promised the proverbial "moon and the stars" by her attorney if the matter proceeds to trial. Whatever your circumstance, it is absolutely critical that you receive assistance from an attorney qualified to not only litigate your matter, but to prepare your case for proper presentation to the Court. This groundwork entails obtaining all of the relevant financial and other documentation to support your case, retaining expert witnesses, conducting depositions, drafting lines of questioning, organizing and selecting trial exhibits, and, most importantly, using all of the foregoing to artfully and persuasively relay "your story" the Court.

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