Divorce Litigation

Family law issues may be settled or may be resolved in a trial or hearing. It is a misconception to think that if you retain a divorce lawyer to represent you in a divorce that your case will necessarily involve a hearing or a trial. Most divorce cases that are technically "litigation" matters never proceed to a hearing or trial and are settled between the parties or their lawyers.

One should hire a divorce lawyer who is capable of litigating a case involving the relevant issues but who is settlement oriented, if that is your objective.

Any divorce case could end up in litigation. Even cases that appear to be guaranteed settlement cases may end up in court. Often times, cases settle quickly that appeared to be a guaranteed "war of the roses" cases. The direction a case takes often depends on which divorce lawyer is retained. See our sections "Selecting a Divorce Lawyer," and "How to Speed the Process and Manage Attorney's Fees."

Potential Sequence of Steps and Procedural Events in a Divorce
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Some issues are simply more complex or more time consuming than others and may extend the divorce process. For example, a custody contest, domestic violence and business valuation issues may extend the time required to complete a divorce.  High net worth matters generally involve more assets and more issues, which can result in more time being required to resolve the case.  Even with the more difficult issues, a divorce can be settled in a relatively timely manner if the parties conduct themselves in a reasonable manner and retain divorce lawyers who have the desire to solve problems rather than create them.

No two divorces follow the exact same path. Below is an example of a potential sequence of procedural events that may occur in a divorce. The financial condition of our courts and the resulting congestion has caused increased delays in divorces that proceed to trial. It is not uncommon for divorces to be continued multiple times and it is not uncommon for days in trial to be separated by weeks due to other pending divorces in the same courtroom.

Potential Sequence of Procedural Events in Child Custody Litigation
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Potential Sequence of Procedural Events in Child Custody Litigation

The vast majority of child custody matters are not litigated and never proceed to court. Parties generally settle their cases.

This is an example of a potential sequence of procedural events that could occur in child custody litigation. That is not to say that all contested child custody matters follow this exact path.  Even if a matter is litigated, there is a high likelihood that there will not be a Evidence Code Section 730/Family Code Section 3111 custody evaluation. Even where a Evidence Code Section 730/Family Code Section 3111 evaluation is completed, there is a high likelihood that depositions will not be taken and that the case will be settled.

The Potential Team
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In divorce matters, the divorce lawyer establishes the strategy and executes the plan, but experts often play a critical role in the success of the case. Retaining the right expert is extremely important. As with divorce lawyers, all experts are not created equal. An incompetent or unqualified expert can destroy a case.

Family law is far more complex than is generally understood. It is litigation not unlike business litigation. The Evidence Code and the Code of Civil Procedure apply in divorce matters as they do in other types of litigation. A divorce is, to a large degree, the division of partnership assets. The same fiduciary duties exist between parties both before and after separation, as exist in corporate and partnership relationships. If civil cases don’t settle, they proceed to trial. The same is true of divorce matters.

Divorcing parties can agree to divide assets, resolve issues, and settle their differences on almost any basis they choose. However, if they do not settle their conflicts, they may end up in a courtroom. Litigation may involve the testimony of experts. In a divorce, an expert is an individual who has special knowledge, skill, expertise, training, or education that make the expert’s opinions helpful to a divorce court on a contested issue. Experts are almost mandatory in certain situations. The qualifications and credibility of an expert can be critical to the weight given to the expert’s opinions by the divorce court. The early retention of an expert can significantly enhance the chances of a favorable settlement. The following experts may be used in family law matters.

Evidence, Presumptions and Privileges
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The property portion of a divorce is essentially the division of a partnership - a business transaction. The law dictates very specific and detailed procedures for this transaction which can take the form of a settlement or a trial. It  may be a very significant error to believe that the concept of dividing community property 50/50 means that the division will necessarily be simple and straightforward. Every case is different.  Parties may disagree on the values of an asset, who is to be awarded the asset, whether the asset is community property or separate property and whether there is a right to reimbursement relative to the asset. If the parties do not agree to a settlement, divorce litigation may occur. If litigation occurs, the court will follow the required procedures and the rules of evidence. The rules require the presentation of the facts in a specific format which may consume considerable time and require detailed planning.

Related Infographics:

Our Divorce Lawyers Handling Divorce Litigation Matters: