A Smart Approach to Divorce Litigation

By Published On: July 8, 2020

So, you’ve tried to resolve the issues in your divorce through a settlement process, but it has now become clear that is not going to be possible, and that you must litigate.  Is litigation a “one size fits all” process?  Do you lose all control of the process once you board the litigation train?  Definitely not.

Below are some specific steps you can take to initiate what we might term “sensible” litigation, a process that you are in control of, rather than a run-away, out of control process leaving you bewildered, angry and poor.

  1. Develop a game plan.  Work with your attorney to develop a sensible plan for the litigation, including realistic expectations: Ask what are your best and worst case scenarios.    Set a realistic budget for what the process will cost – normally the retainer is just the beginning and you will be required to replenish many times until the litigation is done.  Be smart.  Assess whether what divides you from  your spouse (or significant other) is worth the investment in litigation [for example, do you want to spend $10,000 to get $5,000].  Obviously this assessment is different when children are involved.  For perspective, think of your litigation matter like a kitchen renovation: not everyone wants (or can afford) a high-end kitchen with all the bells and whistles.  You may just want a nice comfortable and utilitarian kitchen in which to prepare and eat meals.  Similarly, you must do a cost-benefit analysis as to whether you need all of the components of litigation such as experts or depositions of third-party witnesses in your particular litigation.  Be direct with your attorney — not passive.  Ask important questions such as:  is this worth it and will the return be helpful in achieving my goals?  Finally prepare a budget with your attorney and try and stick to the budget.  Otherwise, the cost of your litigation can quickly get out of control and you are left fighting over who pays what fees!
  1. Implement strategies to keep your costs down.  Putting relevant information as well as your ideas in written form for your attorney helps to lower costs.  Prepare a written narrative of the marriage or relationship.  This is also a time for you to get as smart as possible about your financial circumstances. Put together a detailed assets and liabilities statement with as much information as you have.   Even if you don’t have it all, give your attorney everything you know about.  Also, sit down with your attorney and discuss ways to cost-effectively obtain other information.  Unless it is an emergency, save up your questions/concerns and ask them at one time, rather than in a piece-meal fashion – each time your attorney has to pick up the phone or answer an email, there will likely be a charge. And although your emotions and interactions with your spouse are highly relevant to your divorce case, repetitively dumping this information on your attorney is not a good use of your money.
  1. Keep your eye on the ball.  As you work with your attorney to develop your case for trial, try to identify and avoid the “side shows” which, although meaningful to you, don’t have significance to your legal case.  Stay focused on what is relevant and important.  Ask your attorney what is relevant and tell him/her to remind you when you veer off course.
  1. Comport yourself with decency and integrity.  Even though you and your spouse are now in an adversarial process, it is still possible for you to behave in a way you’ll be proud of when you later look back on this time in your life. This too will pass.  Instruct your attorney to do likewise. This also has the advantageous effect of lowering your fees since animosity and contention is dialed down.  Trying to call your teen-aged children as witnesses, for example, is not likely to be in their best interests and will undoubtedly turn off the judge in any event.
  1. Continually watch for settlement opportunities.  Even as your trial date comes close, there will be windows of opportunity when both you and your spouse are emotionally ready to leave the stress of litigation behind you and look for compromises that you can both live with.  Watch for such openings, and work with your attorney to take advantage of them when they appear.  Staying in charge of your life will help you transition to the next phase much more easily and with more to show for it.

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