Divorce and Family Law Litigation

Sometimes litigation is unavoidable.  Your spouse may have already filed for divorce and now you have a deadline to respond.  You may have concerns about you or your child’s safety that require immediate attention and a court order.  Or you may not trust that your spouse will play by the rules without court intervention.  You are not alone, and you do not have to figure out how navigate the court process on your own. 

Traditional litigation is the process of resolving a legal dispute using the rules and timelines imposed by the court and the legislature. The timeline begins when one party files a petition or a motion and has the other party served.  The parties exchange documents, evidence, and information through a process called “discovery,” which can involve requests for production of documents, requests for admissions, and sworn depositions.  Experts may be retained to provide an opinion on factual issues.  For example, an appraiser might be hired to value real property or a business, or an actuary may be hired to value a pension.  In cases involving disputes over child custody and parenting time, a custody evaluator may be retained to perform a study of the family and make a recommendation to the court.  A vocational expert may be hired to determine the potential income of an unemployed or underemployed spouse.  

During or upon completion of the discovery process the parties, through their attorneys, begin exchanging settlement offers.  Some cases resolve quickly, others involve extensive back and forth negotiations.  Typically, some form of alternative dispute resolution is required before the case will be set for trial.   This may involve using mediation services provided by the court, which is typically limited to addressing child custody and parenting time issues only, or it may involve hiring a private mediator to help the parties reach a global resolution of all pending issues.

The case ends when the parties reach a complete agreement.  If they are unable to do that through negotiation and mediation, the case will be set for trial.  Each party is given the opportunity to present their story to the court through their own testimony, testimony of witnesses, and documents obtained through the discovery process.  An experienced litigation attorney will make sure this process goes as smoothly as possible and will make sure the court is aware of applicable laws and how they apply to the facts of your case.  After hearing from both sides, the judge will make a decision on all issues presented to them, and one of the attorneys will be asked to prepare a judgment or court order memorializing the ruling. 

When to Consider Litigation
over Other Methods

At Posey Legal, P.C., while we recognize that many of our clients would prefer to resolve their disputes outside of court, there are some factual situations in which litigation is the best fit.  Those situations include:

• When there are domestic violence or child abuse concerns.  The court responds rapidly to allegations of physical abuse of a party, or immediate danger of a child. 
  • Family Abuse Protection Act (FAPA) restraining orders prevent an abuser from contacting you or coming to your home or place of work.  If you have children with your abuser, FAPA restraining orders can include custody and parenting time provisions designed to keep them safe. 
  • Emergency custody orders are available to protect children in immediate danger.
  • Stalking protective orders (SPOs), extreme risk protection orders (ERPOs), and Elder Abuse Prevention Act restraining orders are also available in certain cases.
• Cases involving extreme distrust.  Out-of-court dispute resolution processes rely on the parties’ promises to one another to participate in good faith. If believe your spouse will try to conceal assets, will refuse to exchange information and documentation voluntarily, or will generally not follow the rules, you may need the court to intervene. 
  • There are financial restraining orders that go into effect as soon as dissolution case is filed and served, and the court can enforce these orders through its contempt power.
  • Parties can be compelled to produce relevant documents and information through the discovery process, and the court can order sanctions against a spouse who refuses to cooperate.  
• When there is a sizeable power imbalance. If one spouse has a tendency to engage in bullying, intimidation, or gaslighting behavior during the marriage, they are likely to continue that behavior during the divorce process.  Litigation is better equipped to insulate parties from an emotionally abusive spouse than is mediation or Collaborative Divorce.
• Move-away cases.  When one parent wants to move out of state with the children and the other party disagrees, often there is no practical middle ground in which to work out a compromise. For example, if one parent wants to move the children to Florida and the other wants to stay in the Portland area, moving to Denver instead of Florida is not a practical compromise.  Move-away cases present an “all or nothing” scenario that may require a court order to resolve.

How a Divorce Litigator Can Help

Family law litigation can be stressful.  There are multiple sets of rules to follow and many court-imposed deadlines to keep track of.  You do not have to navigate this process on your own. Posey Legal, PC has a team of experienced litigators ready to help you through it.  Even within the litigation process, we look for holistic solutions help you achieve your goals and settle your case efficiently.  Contact us for a consultation where we look forward to answering your questions and making a plan on how to proceed.