The Traditional Dispute Resolution Model

Judicial Proceedings – Resolution Through The Adversary System If A Settlement Cannot Be Reached

In most divorce cases, the initial goal of both participants is to resolve disputed issues by negotiating a settlement. Resolution of your divorce through judicial proceedings means that if matters cannot be resolved through settlement negotiations, some or all of the issues are litigated, that is, decided in court by a judge after a hearing or trial (in family law matters there is no right to a jury trial except in paternity cases and some kinds of contempt proceedings).

What does the process look like? At a hearing or trial each side is given the opportunity to persuade the judge that his or her position is the correct one. The conduct of a hearing or trial is governed by formal rules of evidence and procedure. After trial or hearing, the judge decides the issue (or issues) and makes a ruling. That ruling is generally embodied in a formal court order.

While there is no requirement that you be represented by a lawyer when you go to court, it is usually a good idea to hire a lawyer to represent you if you think your matter might have to go court, because lawyers are familiar with the law, the rules and the court system. Litigation may also involve the use of experts, such as where an asset needs to be valued, in certain kinds of custody disputes, and in a variety of other situations.

Why you might choose to use Judicial Proceedings.

Judicial proceedings can be an effective and efficient way to resolve disputes when there is an emergency situation and you need immediate relief. Examples of such situations are where your spouse or partner is hurting or threatening to hurt you or your children; you have reason to believe your spouse or partner may abscond with the children; or you have reason to believe your spouse or partner may try to take control of an asset, such as a bank account, in which you have an interest. Judicial proceedings can also give you an opportunity to resolve ambiguities in the law about an important issue in the case, or, as in the case of same-sex couples, unmarried fathers and non-biological parents, to establish new legal rights or clarify existing legal rights.

Why you might not choose Judicial Proceedings.

While courts can move relatively quickly in emergency situations, the resolution of other issues may take a long time. This happens because the court system is very congested. It also sometimes happens because one side or the other is able to create delay, or exploit the delay inherent in the process, for strategic reasons. Litigation is often very expensive because of the amount of time it takes lawyers and experts to prepare for and appear at court hearings. In addition, sometimes one side deliberately chooses to engage in tactics that drive costs up for the other side, as a strategy to force a favorable settlement. Another drawback to the court system is that the judge, the person who will be making important decisions about your family and your finances, often doesn’t have the time or resources to give your case the individual attention it deserves. Also, because the process is controlled by the lawyers and the outcome is decided by the judge, it can feel as though you have very little power even though you are the one whose future is at stake. Finally, there is tremendous uncertainty – though lawyers can sometimes accurately predict what the range of outcomes might be on certain issues, much of the time we don’t really know what the judge will do.

My role in Judicial Proceedings.

I can help you in settlement negotiations and can refer you to an experienced litigator if negotiations do not result in an agreement. Although I am an experienced litigator, I no longer represent clients in court because I believe that, in most non-emergency situations, consensual dispute resolution models offer a better process and a better outcome.