Going To Court – “Litigation”
Litigation is the use of court intervention to resolve or decide a dispute between litigating parties.
One item to consider is that courts want parties to resolve cases. One of the most important facts about courtroom to litigation is that 80-90% of it settles before there is a final, ultimate trial. For all persons going through the process of litigation, it is reasonable expected that most will never testify at a final trial in a divorce or custody case. It is a staggering fact. This is especially in domestic relations cases in that you often have your pretrials before a Magistrate or Judge who is ultimately going to hear the case. There are no jury trials in domestic relations or juvenile custody cases. You can have anywhere from 1 – 7 pretrials (sometimes called settlement conferences) before the ultimate decision-maker in your case. Preparation is one of the key ingredients to successful litigation results at Schoonover, Rosenthal Thurman & Daray.
Litigation is not a one shot quick deal.
Many people believe that a case is litigated over a period of one to two months like an episode of Law and Order. In the first half hour of Law and Order there is the investigation and in the second half hour is the trial and resolution of the matter. Family Law Litigation does not work like that. It is not simply a court having a thirty minute hearing that settles all of the issues. It is a process not merely a one time hearing.
We have combined experience of over 40 years at Schoonover, Rosenthal Thurman & Daray among its three principals. We strongly recommend you resolve and work out the differences incident to terminating a marriage (or custody case) rather than to go through the lengthy court case. Yet many times you do not have a choice.
When you refer to the Collaborative section of this website you will see all of the reasons that either side may want to work out an amicable resolution with the other party. However, the decision to work with Collaborative Law only goes as far as your spouse (or other parent) is willing to participate in the process.
Less than fifty percent (50%) of clients can resolve all of their issues before filing a complaint or motion. Most will need to file something with the court first, prior to a case finally resolving itself. Those reasons include:
- If there is a domestic violence situation.
- If the other party has mental problems that impair with his/her judgment.
- The other party has an addiction to narcotics or alcohol that is impairing his/her function in judgment.
- There is a serious risk of immediate threat of harm to you or your children.
- The other party is unreasonable (either due to emotions of the situation or simply who they might be).
- You simply cannot trust a single thing that the other party says and need to get that information verified by an attorney.
These are just some of the reasons why you might need to turn to litigation. The other thing to keep in mind is that since 80-90% of cases settle, sometimes litigation is a valuable tool to get there. Once the other side has a taste of what litigation has in store for them it puts that person in a frame of mind necessary to get the matter moving forward toward resolution they settle. Other times it is good to use of the parties if the parties are only having a disagreement as to one issue and neither party is willing to budge, then maybe it is best to file and try streamlining litigation on that issue.
It is not optimal to start a legal process where a third party court (who does not know you or your spouse) will be making decisions that will affect your life, but sometimes you have no choice. The ultimate goal that anybody has in terminating their marriage is to try and find some more lasting happiness than what they have had. Sometimes you have to fight to get there.
Litigation and collaboration both ultimately lead to the same end of termination of a marriage or the settling up of rights between parents of the child(ren). Choosing litigation or working collaboratively is simply a matter of the best way to get it done. Each attorney at Schoonover, Rosenthal Thurman & Daray is well versed in all the ways to get beyond your divorce, custody, or support matter.
Regardless of the approach, the parties need to resolve the same issues so we suggest that you read the individual topics that may apply to your case. If after all of that you need to still need help then we will discuss how you might consult with or retain Schoonover, Rosenthal Thurman & Daray as your lawyers.
Thinking about getting a divorce & going to court?
Our attorneys can help you through the process, contact us today for more info.