Divorce Options: Litigation

In our first two posts about divorce options, attorney we discussed Limited Assistance Representation and mediation. In the last post in this series, we examine the most common approach to divorce.

The final and most common option is litigated divorce. Litigation does not necessarily mean that the case goes to trial, and often times it does not. The process to initiate a divorce is that one spouse needs to file a Complaint for Divorce with the Probate and Family Court and serve the other spouse with the Summons and Complaint. Most complaints for divorce cite as the reason for divorce that the marriage has irretrievably broken down and there is no hope for reconciliation. This is referred to as a no-fault divorce and is the most common. A fault divorce is different because there is a specific reason that the marriage dissolved, such as adultery, desertion, cruel and abusive treatment, confinement in prison, habits of intoxication, or impotency. The spouse initiating the divorce has the burden of proving the other spouse behaved in one or more of those ways during the marriage, and this can be a heavy burden; it is usually easier to show that a marriage has no hope of reconciliation. Also, there is no significant benefit to filing for a fault divorce, as it is only one of the eighteen factors a judge will look at to determine property distribution, alimony, and child custody and support.

Litigation is an appropriate option when a divorce is combative or emotionally charged. Litigation allows each party to have a lawyer advocating for their best options, which is a great asset to have during the divorce process. It also allows for some negotiation between the initial filing of the divorce and the first court appearance (usually a pre-trial conference). Many cases are settled before the pre-trial conference, at which time the judge reviews the separation agreement with the spouses, which will become the final divorce decree.

One danger of litigation occurs when the parties do not settle beforehand – any disagreement will be settled by a judge who knows little about your situation, but will have the final decisions about personal topics such as your children, assets, or potential future alimony. This option is usually pursued by spouses who have significant personal and/or business assets and cannot decide between themselves a fair and equitable allocation. Cases which involve alimony or spousal support may also go to trial, since there are many factors a judge can weigh in determining the type, amount, and duration of alimony and spouses seldom take all of those factors into consideration.