Litigation is resolving a case through the court system. Although you may represent yourself, it is not a good idea and you should work with a MA family law attorney whenever possible. Some cases start in court, while others land there after other efforts at dispute resolution have failed or are otherwise not possible. Depending on the type of case, the litigation process may vary slightly.
Divorce and Family Law Litigation Overview
Litigation is adversarial. It pits two people against each other – even when these people once loved each other and may have children together. Litigation places much focus on the lawyers and various rules of procedure. It encourages each side to tear down their opponent. Why do you think litigation firm use terms such as battle, fight, and aggressive?
Does that sound like a pleasant experience?
Litigation is almost always the most expensive, stressful, and slowest way to resolve any legal issue, whether a divorce, child support dispute, or a will contest.
Phases of Divorce Litigation in Massachusetts
Litigation involves a number of phases. Here is a simplified overview of the litigation process:
- File complaint
- Other side files their answer, along with any counterclaims
Discovery – Gathering and Exchanging Information with the other side
- The discovery process continues throughout the life-cycle of a case.
- Some information is required to be exchanged by the parties.
- Some attorneys will cooperate with the discovery process, but…
- Other lawyers may file boilerplate or overly-broad requests, costing litigants more money!
- Various tools are available to gather information, including:
- Request for Production of Documents
- Request for Admissions
- Motions are common in Massachusetts divorce and family law practice.
- Temporary Motions may be filed early in the process to establish things like a parenting schedule and support pending a final resolution.
- There are many different types of motions.
- After a motion filing, there is a hearing at the court unless the parties reach an agreement, known as a stipulation.
- Throughout a case, effective attorneys will look for ways to reach a fair resolution of the issues BEFORE a trial.
- Approximately 95% of divorce cases settle before trial.
- Many cases settle at or around the time of the pre-trial conference.
- When two sides fail to reach an agreement, there is a trial.
- A judge decides the outcome for you, although you may have to wait months for the order due to the court's limited resources.
- In family law matters at the Probate and Family Court, there are no jury trials.
- Trials require much preparation and are expensive undertakings.
Post Trial – Appeals
- After the court makes a judgment, either side may file an appeal.
- Other types of post-judgement motions and pleading exist, which can add even more time and legal fees before a final resolution is actually reached.
People have some exposure to courtroom drama and trials based upon movies and television. Remember, media is entertainment. If you are actually involved in a trial you aren't going to enjoy it. In the context of a Massachusetts divorce or other family law matter, a court battle is an unfortunate event.
Legal fees and the cost of expert witnesses devour your financial assets. Animosity and resentment escalate, ruining any chance of a reasonable parenting relationship. Finally, when the court makes a decision, NEITHER side may like it, leading to less compliance and little cooperation followed by even more court appearances through complaints for modification and contempt actions.
Before you find yourself in this position, we suggest that our clients first consider options such as divorce mediation and the collaborative divorce process. Both of these forms of ADR (alternative dispute resolution) are available for other Massachusetts family law matters, such as:
- Parenting and Custody Disputes
- Child Support Modification
- Alimony Modfications
- Removal and relocation cases
Unfortunately, if you or your spouse or ex-spouse has unreasonable positions and is unwilling to compromise, then you may find yourself having a trial.
Does Anyone Really Win?
Technically, one side may obtain a court decision that is better for them. Sometimes the price paid has destroyed relationships and bank accounts. A few weeks or months later, the victory may not seem like much of a win at all. As soon as something changes or there is a disagreement, the parties may find themselves back in court.
There is a saying that nobody really wins at the probate and family court, along with a variant that only lawyers win because legal fees are highest for litigated cases. There is some truth to both of these phrases.