San Diego Divorce: Divorce and Litigation: Fighting in Court

© Anne B. Howard, Esq, 2004

Law Office of Anne Howard

There are 3 ways to get a divorce:

• Litigation
• Mediation
• Collaborative DivorceT. 

This article deals with the most common way: Litigation.  The word conjures up images of attorneys fighting in court to convince someone in a black robe to give one side more than the other side.  People hope that the judge will make the "right" decision. 

In reality a judge does not really know the family, the individuals or perhaps the facts involved.  Each judge probably has 5,000 or more cases.  Too often the judge has not had an opportunity to read the file before the judge hears the case.  The judge has to sift through the mediators' (Family Court Services) recommendations, attorneys' arguments and the evidence the attorneys or parties present in order to reach a decision.  The parties are silent through most proceedings.  Their attorney is their voice. 

If the parties have not worked with their attorneys, their attorneys may not know their case and the party's voice may not be heard.  One common reason is that the retainer paid to hire the attorney is quickly used and the parties want to avoid incurring more fees.  However, if the attorney does not know the case, how can the judge. 

A party can proceed without an attorney but the party generally does not know the rules required to get the documents they need to present their case or how to get the evidence before the judge so that the judge can rule in their favor.  Litigation is financially very costly especially when one party runs their own business and financial records are a mess or non-existent.

Very often one party has difficulty with the way the breakup was handled by the other person or the affair that may have led to the breakup.  The affairs are generally irrelevant. The law does not care about infidelity or hurt feelings.  California is a "no fault" state.  People want justice.  "Justice" rarely happens in family law.  How can it, if the judges have so many cases.  "Division" is generally what happens in family law.   

Litigation is emotionally particularly expensive - someone else is operating the ride, the judge, the court, the attorney, the other side, their attorney, etc.  The silent party is often bewildered before, during and after court.  Parties often benefit by using a therapist to help them get through a divorce and come out stronger afterwards.

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