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How Litigation Works

As a proponent of mediation and a mediator myself with over 20 years of experience, I often have to explain to my clients how litigation process works in order to compare it with a mediation process and to underline huge advantages of the latter.

In this article I would like to explain to all of my readers, not only to my clients, why litigation is a very expensive, lengthy and extremely emotionally draining process.

The break-up of a marriage often involves five issues: property division, spousal support, child support, custody/visitation, and filing for divorce. Let’s take a close look at how does litigation process work in the State of New Jersey.  
Each of you will be required to obtain a lawyer that will represent you. Once attorneys are retained, all communication between two of you will be channeled through them only. Lawyers must communicate regularly with you and provide periodic updates on your case.

Litigation always starts with the filing of a complaint or petition along with a summons by one of the parties. The petition or complaint states the facts of the case and what kind of relief is requested. The summons specifies that the other side has been sued and has a certain time period in which to respond. The other side generally files an answer or a response to these papers. Spouses may need to file additional documents. They may include financial affidavits, stating incomes and expenses of each party, or property inventories, showing what each party claims to be marital or separate property and debts, as well as the value claimed for each item. Sometimes courts will also require parties to file a copy of tax returns, pay stubs, or any other financial documents.

Contested divorce cases can take a long time to resolve. While the entire case is pending, temporary, interim, or emergency hearings may be requested by either of the parties. For example, a party may ask for an emergency ruling on issues of custody or visitation, especially when the parents are engaged in a “tug of war” with each other, or when the children are in serious physical or psychological danger. Courts would often consider a need for an interim spousal support or a child support at a temporary hearing in the weeks or months after a case is filed. This is done to protect a financially disadvantaged spouse during a divorce process. 

After a lawsuit has been filed, a discovery stage of litigation will take place (usually within the first 90 days from filing). A discovery means “finding out information that the other side has.” It is a very time consuming and tedious process to gather the financial information such as documentation of an income, receipts, titles, or deeds from the other side. 

Here are some examples of a formal discovery:
- Document Requests
- Interrogatories
- Depositions

At the end of this long and painful process, should your attorneys finds themselves unable to settle your case through negotiations, four- way settlement meetings, early settlement panel, mandatory economic mediation, or pre-Trial Settlement conference with a judge, a trial will be ordered where a judge will decide your case. 

Once a decision has been made by a judge, it will be noted in the court records and announced. The next step will be an entry of an order, judgment, or decree. Sometimes a court does this, but more often than not, the attorneys write up a proposed final judgment for a judge to sign. This process can take weeks and often months to finalize. 

While all these is taking place, both of you are living in a limbo, in a very emotionally charged environment. You can’t go on with your lives until it is over; at the same time you are not communicating with each other to directly address the real issues affecting both of you. The whole process can take months and sometimes even years to complete. You are spending thousands of dollars covering all of your attorneys’ fees and, if your attorneys are not able to settle your case, it will be decided by a judge who is simply not capable of knowing all the important things about you and your particular situation.  

In mediation you will be totally in charge of your divorce process and will be able to end your relationship with dignity, and a minimum of psychological and financial damage to both of you. 
 

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