If you are looking for a divorce or separation, you are most likely trying to find the easiest and best way to handle the situation while still trying to stay emotionally and mentally stable.
In California, there are various ways of pursuing a divorce. One of the most common methods is traditional litigation. We will focus on familiar topics in traditional litigation in California further below in this article.
At San Diego Divorce Attorney, we are experienced in handling legal procedures revolving around divorce, separation, and traditional litigation. Get in touch with us to understand your situation and provide you with the best legal advice possible.
What is Traditional Litigation?
Litigation is the process of making a complaint to a court to seek legal action. The nature of the complaint is what determines the settlement negotiations. Litigation takes place in courtrooms and can involve criminal and civil suits. However, in family law, litigation is considered a civil action.
In traditional litigation, both parties' attorneys present their cases to their judge, who will decide based on all the information presented.
The litigation process is different in various counties. The method may also be either for pre and post-decree. However, there is a similarity. Every court sets requirements and deadlines that have to be met through the entire process. For instance, one of the requirements is that the two individuals must complete a compulsory financial disclosure and outline their:
- Monthly expenses
- assets and debts
Characteristics of Traditional Litigation
Some of the aspects of litigation are:
- Litigation is involuntary. This means the defendant has no choice but to participate in the process
- It follows structured and formal rules of evidence as well as procedures
- The court proceedings are open
- The public court records are also open
- The losing party pays the cost
- There is the freedom of appeal
- The decision is established on the law
- The decision can either be final or binding
- Every party gets the chance to present their arguments and evidence, and they are also allowed to cross-examine the other party’s evidence and arguments
When is Litigation Beneficial?
Various circumstances can make litigation the best solution during your divorce. These circumstances include:
- It Marks the End of an Abusive Marriage. If there was an abusive party in the union, litigation could be the best solution because it will offer protection to the other party. It sets the offended party free from a stressful and unhealthy relationship.
- Corrects Power Imbalance — if there was a power imbalance between the two parties, litigation can offer the best solution and protect the vulnerable party. The presiding judge's decisions are purely based on facts and not who has a decisive edge over the other.
- Ensures Parties Cooperate — other processes might fail where there are trust issues between the parties. In an ADR process, for instance, if the conflicting partners do not trust each other, they might not cooperate accordingly. With litigation, the process runs on facts, and there are court-mandated deadlines and requirements to be met; hence cooperation is demanded.
- Disclosure of all Finances — although both parties must offer full disclosure of assets and finances, some spouses could feel the need to hide some assets and finances without the court's seriousness. Litigation ensures that both parties provide full disclosure of their investment and finances.
- Can be Less Expensive for Contested Divorces — if your separation process is challenged at each step, opting for the ADR process can be expensive. This is because it mainly depends on the extensive use of financial experts and real estate professionals or other specialists.
- Legally-binding Decision — the judges make legally-binding decisions. In rare circumstances like a request to make child custody changes and change in child support, a person can change the judge's findings.
- Resolves Disputed Issues — when there are unresolved issues of separation and divorce proceedings, or there are some pending issues, litigation ensures they get fixed, and the divorce proceeds accordingly.
- Appeal — if you feel that the litigation process's outcome was unfair on your side, you have a right to appeal. The judge’s ruling might not be final if you can appeal in a higher court to get the justice you feel you deserve.
Disadvantages of Traditional Litigation
Like other forms of divorce settlements, traditional litigation comes with its share of unappealing disadvantages. These disadvantages could include the following:
- The litigation process is expensive — litigation is a costly endeavor that will dig deep into your pockets. Legal representation does not come in cheap, and those court processes will come with some unwarranted expenses.
- The process is slow — those court battles are engaging and bound to take time. Compared to other methods, the litigation process takes quite sometime before completion.
- The process can be quite depressing — considering you are fighting against an individual you once loved and shared a life with, this process can be stressful. Moreover, trying to get an edge over each other; who gets what, and who deserves what will present stress. The process is considered unhealthy and may negatively impact on your ability to handle life typically.
- In the whole process, the judge has the final — the most critical part of your settlement is limited to a third party, unlike in other forms where both parties agree on the outcome. The victims in the whole process are like witnesses since their say barely holds against the judge's resolve.
- It is impersonal — unlike other methods where empathic communication could come in handy to convince the other party, litigation is purely based on critical facts. When the judge makes his ruling, he focuses on the presented facts rather than the parties' feelings.
- It burns bridges — litigation is mostly the last resolve, and coming back from this can be quite hard. By agreeing to proceed with this process, you acknowledge no future positive engagement with the other party. In most cases, the process is usually messy with collaterals, and one of the parties is bound to work away dissatisfied, creating a form of hostility. When the parties say negative things about each other on the dock, it kills chances of working together or any further engagement in the future.
- Ugly publicity — if you are among the crème of society, you can be sure that you will be receiving a lot of ugly hype. Your personal and private issues will find their way into public domains.
- Litigation is not a problem-solving endeavor but a case of winning arguments — it is the last nail on a relationship's coffin.
The Litigation Process
Litigation is a long process compared to other types of divorces. There are five stages in a litigation case.
Every party needs to ensure that they have followed the civil procedure rules by the PDPAC before issuing a claim. Some of the set requirements include sending a letter to the other individual stating all details involving the case and allowing them to respond to the message.
Another requirement is to review the Alternative Dispute Resolution to settle the dispute. It is crucial to prove that you have tried this resolution method before the claim has been issued.
Issuing the Claim and Exchanges Statements of Case
A claim form should be written stating the 'claimant's case' and the remedy claimed specifics. It could be the damages to be evaluated, the payment of a specific amount, or the person who could be contending for a declaration.
After this, the court issues the claim, and the defendant is serviced with the claim form. Either the court or the claimant's party can carry out the service. The defendant has up to 14 days to file an 'Acknowledgement of Service' and additional 14 days to ask for defense.
After filling the defense, the court assigns the claim to a suitable track.
Exchange of Evidence
After the allocation of the claim, the court directs the parties. If the request has been allocated to the fast and small track, they are standard, and the fast track directions happen in 30 weeks in the middle of the issue and trial. However, in the case of multi-track, a 'case management conference' takes place. Clear directions are given.
Each party is supposed to disclose and exchange statements from the witnesses. In some cases, there are also settlement discussions that happen. It is crucial to be thorough when gathering information because it will help the other party and the attorney realize fairness.
The court usually sets the trial date. It also sets the length of time that is suitable for the hearing. Before the court issuing the dates, each party is asked to give unsuitable dates for them.
At the trial, the court will look at the legal submissions and listen to the witnesses and the experts' evidence.
Post-trial Appeal and Implementation
If you win the judgment, the other person will be asked to pay or do what has been decided by the court within a specific period.
If you lose, you have the chance to appeal the judgment. It should happen four days after the ruling.
As stated above, when spouses cannot reach a consensus on matters to do with divorce, that is when they consider litigation. Some of the agreements that need litigation include:
- Child support
- Child custody and parenting time
- Property division
- Spousal support
The following section will explain how California courts handle each of these topics.
When making decisions concerning a child's custody, the courts are advised to follow what's best for children.
The court can decide to issue the following types of custody:
- Joint physical custody — This means that both parents have permission to have the young one physically present at their resident. The time that the child spends with each parent is divided equally, or one could have more time depending on various circumstances like where the child is schooling.
- Joint legal custody — This is the most common type of child custody practiced in California. Here, both parents have the responsibility and permission to make decisions like where the child will attend school and if they will get involved in any religious activities. Both parties can also decide whether the child will need any medical attention apart from emergency cases.
- Sole custody — There are two types of sole custody:
- Legal sole custody — means that only one parent has the permission and responsibility to make significant decisions on the child's health, welfare, and education. The parent can make such decisions without consulting the other parent.
- Physical sole custody — This means that only one parent is allowed to reside with the child. The other parent can order for visitation.
Other factors that the court considers before making the decisions include:
- The quantity and quality of contact with each parent
- If any parent has present or previous abuse of alcohol or drugs
In California, the courts use the Income Shares Model to calculate child support. Child support is meant to cover:
- Medical care
- Child care and
- Other reasonable expenses like traveling, sports or camping cost
There could also be shared support where one the child needs are divided into two.
Property division is a big topic during divorce proceedings. The big question is always about "who gets the house?”
During litigation, two factors determine how property division will happen. These factors are:
- If you reside in a community property state — property acquired by both parties during the marriage.
- If you reside in a separate property state — This is a property that belongs to one party. For instance, a house you bought before getting married.
To have a fair property division, each party should list all their properties and the value for specific properties.
Spousal support is when one party pays the ex-party some amount, which is mostly done every month.
Who Qualifies For Spousal Support?
In most cases, only people who have stayed in the marriage for more than five years are qualified for spousal support. Before the judge decides on the consent, he/she considers the following factors:
- What each spouse earns
- The property and assets each person owns
- Whether either of the two parties has debt
- What was the contribution of each party to the marriage?
- Other factors like the physical and mental health condition of each party
Having an abuse history can disqualify you from spousal support.
Difference between Litigation and Alternative Dispute Resolution (ADR)
Traditional litigation is usually the last option after all other alternative dispute resolution efforts have failed. It is an all-in process devoid of any past feelings consideration. Here is how it compares to alternative dispute resolution methods such as arbitration, mediation, conciliation, or negotiation:
- Rules and Laws — Litigation is a pure court process that entails the observance of civil laws. Conflicting parties are expected to follow specific rules, and diverting from such could reflect negatively on their case. For instance, they are expected to testify honestly under oaths in whatever issues the court engages them. ADR, on the other side, may have rules but not as strict as those in litigation. Moreover, being influential voices in the resolution efforts, the ADR parties can tweak the rules as they please as long as they agree.
- Publicity — Litigation is a public endeavor involving the court system, while alternative dispute resolutions are majorly a private arrangement. There is no way to avoid publicizing your issues; the media is bound to be all over your case, especially if you are a public figure. ADR is the way to go if you want to keep your issues private.
- Selection of a Judge or Arbitrator — While the parties might have a say on whether their case is presided over by a judge or jury, they cannot determine who the selected judge or jury members should be appointed. However, with ADR, the spouses may choose their mediator or arbitrator.
- Use of Attorneys — Attorneys may represent spouses in ADR, but their roles are minimal; the spouses have more control over their issues. The litigation process, on the other hand, is an attorney show. It is about gathering and presentation of evidence, making motions, and arguing their client's cases.
- Final Verdict — In ADR, the mediator, arbitrator, or negotiator makes recommendations to solve whatever conflict the couples are mixed up. In most cases, their decisions are not binding, and the teams might weigh their options on the recommendations made. The opinion of a judge or jury in a litigation process, on the other hand, is binding, and unless the losing party appeals, the couples are expected to respect and act on it accordingly.
Find a San Diego Divorce Attorney Near Me
Litigation can be an engaging process that demands having the best legal representation by your side. The process can be draining, and it can hinder you from attending to your daily needs. However, a skilled attorney can make the process easier and smooth for you. At San Diego Divorce Attorney, we have the most experienced divorce attorneys ready to help you win your case. Contact us today at 858-529-5150 for a free consultation.