Litigation: The Glory of War in the Family?

Alternative Dispute Resolution (ADR) is the typical term for mediation, collaborative and arbitration. These are considered alternatives to litigation. The fact is, these should be the main lines for dispute resolution with litigation being the alternative when nothing else works.

War is the metaphor for court. Two opposing sides meeting to collide and do battle with a prize in sight for the victor, or so it seems. That is the “glorious” view of going to court. The fact is, litigation is not clean and the outcomes are rarely clear. Courts do not care about infidelity or anything else that may have lead to the divorce. The basic interest of the court is that the children are provided for, a spouse is not going onto welfare and property is divided. The courts in California have no interest in a story. Lack of affection, the pain suffered or any other factor a divorcing party may feel will add no weight to either side of the argument.

When you litigate a divorce, each party chooses an attorney. Someone files a petition for divorce which, in essence, is a law suit asking for relief through the courts. The other side responds and the whole process is started.

This archaic method started with the idea that civil suits are best handled within the courts. However, family matters are rarely civil. One attorney noted that in criminal court you have the worst of people acting at their best. In family court you have the best of people acting at their worst.

The process itself is straight forward and costly. Each side asks for information from the other. That means two sets of financial books are created and two sets of documents are reviewed. If each attorney is charging $300 an hour, that is $600 for each hour one piece a paper that changes hands when each attorney must review it. Depending on the size of the assets, the complexity of the situation, the presence of minor children and the emotions of the couple, issues can drag on with letters and accusations passing from each spouse through the attorneys. Every time one party wants to get information to the other side, it goes through the attorneys. If there is a business or asset needing to be valued, each side hires an appraiser. Then after the two appraisals are complete, the matter is either negotiated or it goes before a judge that listens to the experts, and other testimony, and then renders a decision.

Sadly when litigation takes hold too many people start fighting with the intent of hurting the other person. Raw comments are made that lead to further retaliation and costly activity between attorneys.

In the middle of a lot of these cases are the children. They are the true casualties of litigation. Imagine the feelings that must come as parents fight over the children like they are property with an income stream attached. While that may not be the intention of litigants, that is too often the physical aspect of how children are treated in the process. Arguments are made over how much time each child spends with each parent followed by arguments about support payments based on that time allocation.

Sadly when litigation is the chosen option, more money is spent on unnecessary time and effort that only leads to frustration for both parties. Then, with lightened pocketbooks, there is less to eventually argue about.

While this is the case for most divorcing couples that litigate, there are times when litigation or a court appearance is necessary. For example, a spouse may be absent and refuses to appear or when there are complex family abuse issues that involve restraining orders. In other cases, one party may refuse to negotiate or acknowledge that the other person wants to move on. There may also be other incidences when going to court may make sense.