Navigating Divorce Litigation: What You Need to Know
Going through a divorce (or have a friend who is)?
Divorce remains a huge legal and social problem in the United States because each year, many couples decide to part ways with each other in marriage.
According to the statistics provided by the Centers for Disease Control and Prevention in the latest national report data, the United States recorded about 672,000 divorces and annulments.
Most divorces settle out of court. While the divorce litigation process involves a series of legal steps that are meant to settle disagreements between spouses when they can’t agree on important topics.
The process usually starts when one spouse, the petitioner or plaintiff, goes ahead and files a divorce complaint, or petition, with the right family court. That document lays out what they’re asking for, and it can also bring in suggested terms about how belongings are divided, plus child custody, child support, and spousal support.
Although divorce laws vary by state, most litigated divorces follow a similar process. One spouse files a petition, and the case ends with either a settlement agreement or a court judgment. Here’s what you can expect during divorce litigation.
The Difference Between Contested and Uncontested Divorce
Every divorce starts with the filing of a petition in family court and formal service of process to the other spouse. In the process, what comes afterwards will depend significantly on how much both parties agree on major areas like property, support, and child custody.
Uncontested divorce is when both parties are in agreement on all major issues in the divorce and will take about three to six months with an estimated cost of $1,500-$5,000. Most states mandate some waiting period even after the agreement and could vary from several weeks to several months depending on state laws. For instance, filing a divorce case in California’s Orange County Superior Court costs a $435 filing fee per side.
A contested divorce is when both spouses cannot agree, and the court must be involved in settling their differences. Such divorces will go through a lot of litigation, with an average time of 12 to 18 months and a cost of $15,000-$30,000, based on surveys of the 2024 legal industry. Those that go to trial will definitely cost more money because of additional procedures.
As to whether you face a relatively simple, uncontested divorce or a more complex one, it is important to have an experienced attorney guiding you through the process, as Benton County family law attorney Allison Michelle King advised. Your attorney will help you resolve issues you might face, including property division, child support, spousal support, and child custody.
The Discovery Phase, Where Time and Money Are Spent
Discovery is the evidence collection process in divorce actions. This is where the most amount of money is spent in a divorce proceeding. It entails each party giving the other his/her financial documents and answering interrogatory questions that are usually put to them in writing. Discovery can include requests for records from employers, banks, and financial institutions through subpoenas in case there is any dispute regarding income or assets.
The documents involved in discovery in divorce cases include tax returns, bank and investment records, pay records, business records, retirement account records, property records, and debt records. Discovery can become quite expensive and complicated when one spouse feels the other spouse is hiding assets or underreporting income.
Not cooperating with the discovery process increases the costs of the process and slows down proceedings. Noncooperation in this process may lead to an order by the courts to give the other side any document that he/she needs to make a decision or even pay for the other party’s lawyer because of delaying the process.
How Property Division Actually Works, and Why That Varies by State
Division of property is an important aspect in any divorce process, and there are different approaches that may be used from state to state. Incorrect application of property division laws from one state could lead to false expectations concerning the distribution of property and debts.
The state of California follows the community property approach, whereby property, income, retirement accounts, business, and other assets acquired during the marriage should be distributed in equal shares under California Family Code § 2550. Separate property, including the assets that were owned before the marriage or received as a gift, is not included in the division process.
The state of Washington follows the just and equitable approach that allows a court to distribute both community and separate property according to certain criteria such as length of marriage, financial status, and property value, among others. Separate property can be considered when using this approach, unlike California.
In any contested divorce process, appraisal, financial analysis, and review of records may be used to establish the value of the property.
Pre-Trial Motions and Temporary Orders
Throughout the process of discovery, either party may seek temporary orders on a wide range of topics. This may include who shall occupy the marital residence, how the children’s schedule works during the period of the litigation, the financial support one party must pay to the other for the duration of the case, or if there is any disposition by either party to dissipate or transfer any assets without a prior court order. Temporary orders remain in place up until the issuance of the divorce decree.
Motions also cover issues of admissibility of evidence and issues affecting the procedures to be followed during the trial. The court usually sets status hearings and pre-trial hearings to facilitate the progress of the matter and facilitate settlement. Mediation is usually ordered in many jurisdictions before the trial of any contested case.
What Actually Happens at Trial
Divorce trial proceedings often entail what is referred to as a bench trial, where the judge evaluates the evidence rather than the jury and renders a verdict. The proceedings might involve any number of issues left unsolved, including the division of assets, alimony payments, the question of child custody, and child support.
Evidence will include not only document submissions but also testimonies of witnesses, including expert witnesses on matters related to finance, business appraisals, or custody matters.
Divorce trials that are contested take one to several days depending on the complexity of the case. The judge may render an immediate verdict or take several weeks to submit his or her written opinion regarding the verdict after the trial.
Appeals and Post-Decree Proceedings
An appeal is when a spouse can question the decision made by the divorce court because he or she believes that the trial judge committed some errors.
Unfortunately, there are limits to appeals, since the appellate courts usually do not make their own decisions about the evidence and facts as presented by the trial court judge. In fact, their task is to determine whether the law was applied correctly or the trial judge abused his or her discretion.
The post-decree process is distinct from the appeal, and it relates to the changes taking place after the divorce is granted. It may be necessary to make some modifications to child support, alimony, or custody because something has changed.
Managing the Cost of Litigation Strategically
The costs associated with a divorce suit tend to revolve around legal fees that, at times, tend to be the highest of all costs. This is due to the time required for attorneys to handle cases where disputes necessitate the need for them to conduct depositions and other lengthy processes.
This is because both the party involved and the lawyers have to know whether or not the dispute is worth taking to court. Mediation involves the use of an impartial third party to assist in getting a compromise and can be faster and cheaper than litigation. In many cases, courts will require mediation in order to solve disputes before trial.
The process of divorce litigation is usually quite predictable, but it takes different lengths of time as well as having varied costs depending on the amount of conflict between the spouses and the complexity of the assets.
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Navigating Divorce Litigation: What You Need to Know
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