What Happens in Divorce Litigation

By Brad Pawlowski, JD

Many families go through “traditional” divorce litigation. It’s familiar, it’s common and it’s what most people know as their only choice when they need to get divorced. What many people don’t know, however, is how many bad things that can happen from litigation. Divorce litigation’s “bad things” all stem from a total loss of control. Once a family is in the court system, they lose control over the process, decision making, timing and expenses. Ultimately, the worst thing to come from litigation is that it’s hard for a family to recover from some of all of those bad things when it’s over.

The litigation process puts a family in the court system where they are tied to the court’s rules. The process requires a spouse to start the divorce by filing a petition pitting one against the other – a Petitioner versus a Respondent. That adversarial start may also come with service of a summons by a Sheriff upon the other spouse which can cause lots of negative emotions. From there, the process requires formal exchanges of financial information through interrogatories and production requests, subpoenas and depositions, where the parties attempt to determine the value of marital assets and amounts of any maintenance or child support payments. If there are any disputes over these exchanges, motions need to be filed with the Judge to resolve the issue. When the parties are unable to agree on a resolution of their all of their marital disputes, a trial is required where a Judge will hear witness testimony, view documentary evidence and ultimately determine who gets what from the martial estate. Oftentimes, that trial will proceed in many parts consisting of a few hours of time each session spread over many days and weeks.

If there are children involved, the parties need to decide upon parenting time and decision-making authority for the kids’ major life decisions like education, religion, extracurricular activities and health care. If they cannot agree, motions are filed where a Judge will likely first appoint a guardian ad litem or child representative to serve as the Judge’s eyes and ears and a voice for the children. Once appointed, the representative interviews the parents, the children, and usually other family members and people who know the family as the representative tries to determine what’s best for the kids. The representative reports to the Judge and the Judge uses that report to make decisions on how the parents spend time with and make decisions for their children.

From the short insight into the process, it’s easy to see how parties lose a lot of their decision-making ability during litigation. The formal discovery process requires specific exchanges of lots of information, sometimes unnecessarily. Disputes over support, maintenance, values of assets and debts and ultimately who gets what, are determined by a Judge. The fate of parents’ relationships with their children, parenting time and how the family decides on their major life decisions are examined by an outside lawyer for the kids and then ruled on by a Judge. In the litigation system, the ability to control your own decisions is difficult.

With that loss of decision-making authority comes the inability to control the timing of the litigation. From the very beginning, the Respondent has 30 days from service of the summons to file an appearance in Court. Absent emergency, nothing can happen until that’s done. Court systems typically work in 28 day or longer increments while the case is pending. The exchange of financial information is usually 28 days to issue the questions and then 28 days to provide answers. That’s almost 2 months and, in reality, that process usually takes 120-180 days or longer. If a motion is filed, it usually takes 7-14 days to obtain a date before a Judge, the responding party will usually receive 28 days to file a written response and then the filing party will receive 14 days to file a reply. Only after that 60 or so days, will the Judge have a hearing, which may be set anytime after the reply is filed, sometimes as far as 60 more days out. The litigation system works on its own time, regardless of how fast one party may want it to move.

As can be imagined, the loss of control and decision-making ability increase the expense of the divorce. The discovery through the formal process requires each parties’ lawyer to prepare and propound the questions, obtain and review the other parties’ answers and engage in discussions over missing information or clarifications. Any disputes in court require both lawyers to file things with the Court, appear in court and prepare for and argue at hearings. In addition, the litigation process has extra opportunities to increase expenses, like court status hearings, where lawyers appear to tell the Judge what’s going on in the case. Those statuses are typically every 30-60 days and can be billed at 2-4 hours or more of total legal time depending on the courtroom and the lawyers’ time spent. If a children’s lawyer is appointed, he/she needs to be paid as well. Litigation allows for lots of double expenses in the sense that each party has a lawyer doing essentially the same thing as the other for their client, but the total of the two is ultimately the family’s expense in the end.

Many bad things can happen during divorce litigation. The loss of control in the process means there is little ability to affect how things are done – the court system rules take over. Decision making is inhibited which leads to the inability to make pick how the marital estate is divided and how parenting issues are resolved. Things take much longer because parties are not in control of their own schedules. Painfully, litigation can be much more expensive because of the loss of control in the process, the decision making and the timing. Unfortunately, the toll that those bad things take on parties, on parents, on children and on the family unit as a whole after a divorce is hard to recover from.

Brad Pawlowski

Fritzshall & Pawlowski Attorneys at Law

6584 N. Northwest Hwy.

Chicago, IL 60631