Traditionally, one party serves the other with legal documents that ask for everything that a court could possibly award. The other party responds with a counter-suit, asking for the same awards from the court. The attorneys then begin the discovery process to find out about the couple’s assets as well as custody and support issues. The attorneys use formal court procedures such as written questions answered under oath (interrogatories), oral questions answered under oath in front of a court reporter (depositions), and subpoenas (use of the court’s power to obtain documents from third parties).

Both parties, through their attorneys, file their respective documents then wait for a series of court hearings to move the case forward over a period of months or even years. Attorneys contact their clients as necessary, and usually send them voluminous copies of all the documents they file and obtain.

Where there are real properties, businesses, professional practices or other tangible or intangible assets that are considered relevant to the marriage, professional evaluators are often retained, at the parties’ expense, to do the necessary appraisals or valuations. In the case of contested custody matters, forensic psychological experts may be retained, also at the parties’ expense, to evaluate the family situation with an eye to a court decision on custody, visitation and other parental matters.

During this process, the attorneys negotiate with each other in an attempt to reach a settlement. This type of negotiation is a process that is often lengthy, and can be bitter and filled with “win-lose” proposals. However gently done, the threat of going to trial if the process breaks down is always present. As the case moves closer to trial, the pressure to settle at these pre-trial conferences and hearings intensifies. Decisions are sometimes made under dreadful pressure. For all of these reasons and more, most divorcing couples do not want to end up in trial.

An actual trial before a judge is truly the last resort for couples who are so entrenched in their positions that compromise is impossible. Although litigation is the costliest and often the least efficient way of proceeding, it is sometimes the only option. Typically, only 2% of litigated divorce cases actually go to trial because the case is typically settled “on the courthouse steps.” Unfortunately, this usually occurs only after the parties and their children have incurred substantial financial and emotional costs. Almost no one wants their future, the future of their children, or their property rights determined by a stranger.

In a trial each spouse’s attorney argues their client’s position on the disputed issues. The skill, experience and effectiveness of the attorneys is of paramount importance. The attorneys representing you should possess clarity of understanding and the ability clearly to educate clients. Witnesses, (including family members, friends, teachers, child care workers and others), may be called, and experts may be brought in by each side to give opinions about child custody arrangements or to value property.

It may be helpful to actually sit in on a court session conducted by your divorce judge. Then you can decide if you wish him/her to make critical decisions involving your future.

Please also review the Advantages and Disadvantages of Traditional Adversarial Litigation.