The Divorce Process: Part III — Litigation and negotiation

Motions

If you need to readjust certain arrangements during the divorce process — such as custody, visitation, or support — you can initiate this by filing a motion with the court. Next, a short hearing takes place in which the lawyers representing you and your spouse present their cases before the judge. In most cases, only the lawyers are permitted to speak; however, if you are going the Do-It-Yourself route in your divorce (a path that’s only recommended for very simple divorce cases), you will be able to represent yourself in this hearing. Once the judge makes a decision on the matter, the regular process continues as before.

Litigation or negotiation?

If your divorce is contested, you and your spouse must decide how to resolve your divorce. Will you fight it out through adversarial litigation, or can you set aside personal feelings long enough to negotiate outside of court? If you want to avoid the “divorce from hell”, Alternative Dispute Resolution (ADR) methods, such as arbitration, mediation, and Collaborative Divorce, have become popular means of settling divorce in a cooperative environment with reduced stress and expense. Some states have made mediation compulsory in the divorce process.

Talk to your lawyer (and your spouse) about the different options. For more information on divorce mediation, click here; for information on Collaborative Divorce, click here.

Trial

If you and your spouse just can’t agree, then your case goes to trial. Divorce trials can take many months or even years, and they’re never pleasant.

Generally, you and your spouse each tell your respective side of the story before the judge (and the public). You take the stand, and your own lawyer asks you questions that prompt you to explain your side — and then your spouse’s lawyer has the option of cross-examining you or challenging the validity of your perspective. The same goes for both sides’ witnesses (both personal and professional): each of you dukes it out through conflicting testimony and attempts to make your respective case look more believable. Finally, the judge — a stranger who only knows you through what he or she has seen in court — weighs all the evidence and makes all the final decisions.

Click here for Part I, Part II and Part III of this series of articles on The Divorce Process.