What is Litigation?

Litigation is the legal word for a court process that resolves legal disputes between two or more parties. Think lawsuit or court case. When the parties in a divorce or family law matter cannot reach a settlement outside the courtroom, they can initiate litigation and have a judge determine the outcome. While there are certain situations where going to court is the best option to protect your interests, there are also several alternatives to litigation that can be used in divorce and family law matters under the right circumstances.

What is the Litigation Process?

Litigation is a structured court process that is available to resolve divorce and family law matters. The litigation process can be time-consuming and costly. However, it may be the only option in cases where mediation attempts have failed or there are other issues in the case that require court oversight. There are several phases that a case must go through in litigation before reaching the trial stage when a judge hears from the parties, including the following:

Pleadings

Litigation begins with the pleadings stage. Pleadings typically are the first papers filed by each side with the court. Specifically, to start the litigation process, one party must file a Complaint with the court, get back a summons, and serve both on the other party. The Complaint states the facts of the case and the legal basis for the action. The respondent, sometimes called the defendant(the other party, once served) must then file an Answer to the Complaint with the court and serve it on the petitioner, sometimes called the plaintiff (the party who filed the Complaint).

Discovery

After the pleadings stage is complete, the formal discovery process will begin. This phase of litigation allows the parties to request information from each other to learn more about their positions in the case. This is often the most lengthy phase of litigation and gives the parties the information they need to negotiate a settlement — or move forward to trial. Discovery can include depositions (transcribed interviews under oath of witnesses or the other party), requests for documents, and interrogatories (written questions to the other party that must be answered under oath), among others.

Motion Practice

Throughout the case, the court schedules various hearings and deadlines by which the parties must complete certain tasks in the case in order to get ready for trial. Both sides can also engage in motion practice — this is the process of filing formal requests with the court to ask for a ruling on a particular matter. Examples of motions in divorce cases and family law matters can include those requesting temporary orders for child support, alimony, and child custody. A party might also make a motion to compel discovery if the other side is not complying with discovery requests. If a party is in violation of a court order, the other can file a motion for contempt.

Trial

The litigation process concludes with a trial on the disputed issues — unless the parties reach an agreement before trial occurs. The trial provides the parties with an opportunity to present their arguments and evidence to a judge who will then make a determination about the issues that need to be decided. The judge will enter an order which becomes legally binding upon both parties.

Are There Alternatives to Litigation?

Litigation isn’t the only way to resolve a divorce or family law case. There are several forms of alternative dispute resolution that can be used to settle these matters outside the courtroom amicably, cost-effectively, and efficiently. Some common types of alternative dispute resolution methods include the following:

• Out of court negotiations — The parties to a divorce or family law matter may negotiate the issues in dispute outside the courtroom between themselves or through their attorneys.
• Mediation — Mediation is a confidential, voluntary, non-adversarial process that involves a trained professional neutral third party called a mediator who will assist the parties with resolving the issues in their case. The mediator helps to facilitate healthy communication and works with the parties to find creative solutions that may not be available in the courtroom.
• The collaborative process — The collaborative process can be used to legally end a marriage with as little conflict and stress as possible. With this method, the couple must sign an agreement that states their number one goal is to avoid litigation and achieve a fair and lasting agreement. As a result they agree neither one will resort to litigation. If the collaborative process fails, the parties must start the case over and find new attorneys for litigation. Collaborative divorce uses a team of professionals who are assembled based on the issues that must be resolved in the case. In addition to the attorneys for the parties, the collaborative team can include mental health professionals, financial neutrals, child custody specialists, and appraisers.

Critically, not every case is suited for alternative dispute resolution. For instance, if there is a power imbalance between the parties, domestic violence is an issue in the case, other options have been tried and failed, or it is suspected that a spouse is hiding assets, or is cutting off funds or access to children, litigation can offer more protections. It’s best to discuss your options with a skillful family law attorney who can best advise you regarding the facts of your case.

Contact an Experienced Maryland Divorce and Family Law Attorney

Litigation in family law matters can be stressful and emotionally overwhelming. A knowledgeable attorney can guide you through the process and provide the compassionate counsel you need as you move forward toward a resolution. At Strickler, Platnik & Hatfield, we are adept litigators and committed advocates who are committed to making the litigation process as easy as possible. To learn more about how we can assist you with your divorce or family law matter, contact Strickler, Platnick & Hatfield to schedule a consultation.