When Do You Have No Choice But to Litigate Your Divorce Case? Here Are 4 Instances.

By | Published On: March 28, 2016

Abraham Lincoln famously said: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time.”

Most experienced divorce lawyers today will tell a client the same thing – that litigation is not the best way to resolve your marital or relationship issues.  Nonetheless, there are times when you have no choice but to litigate your divorce/family case (or commence litigation to force fruitful settlement negotiations).  Here are some descriptions of the most common of those scenarios where litigation may be necessary:

1. The Safety and Welfare of a Child Is at Stake

The “No Choice Situation.” Charles had three-year-old twins and a wife who was unwilling to recognize the important role he had in their lives.  She rejected the recommended schedules that both a mutually-selected custody evaluator and an experienced mediator proposed.  Charles felt he had pursued every reasonable avenue to reach a settlement outside of court and, therefore, had no choice but to ask a court to order a schedule that would ensure a significant role for him in his young children’s lives.

2. The Other Party Is “Overreaching” or “Stingy” to an Extreme

The “Overreaching Scenario.” Bob, a high-income earner with significant assets, was genuinely concerned about the well-being of his wife, who suffered from a chronic and, at times, debilitating health condition. However, the demand she made for a combined alimony and asset package was far outside the range of what Bob was advised a court would award or that her most generously calculated needs required. Bob, under those circumstances, ultimately decided to let a court decide what was fair.

3. The Other Party Has Created an Emergency by Shutting Off Access to Funds, Secreting Assets or Otherwise Creating an Uneven Financial Playing Field

The “Terrorist Scenario.” Barbara was a homemaker with three children in elementary school. When she confronted her husband with her suspicions that he was having an affair, he responded by canceling the family credit cards, closing the joint checking accounts and taking back the company car she drove. Barbara had no choice but to involve the courts to ensure she had sufficient funds to take care of the children and herself and restore stability until the divorce was resolved. In this very upsetting scenario, continuing to wait and hope for the best could be very detrimental to Barbara’s cause since a “new” reality would have been quickly established.

4. The Other Party Has Significant, Enduring Mental Health or Addiction Issues

“The Addict.” Michelle’s husband had an uncontrolled alcohol problem about which he was in denial. Although he was a good parent when he was sober, at regular intervals he would drink to excess and then would be neglectful and even put the children at risk. However, he refused to acknowledge that Michelle had any reason for concern. Michelle ultimately decided that a judge would have to tell her husband what the parenting arrangements would be and how he was to act with the children while they were in his custody. Sometimes a person who is dealing with a spouse or partner with mental illness or drug/alcohol addiction is slow to act and may unintentionally put their children in harm’s way.

Making your individual decision will require that you put in perspective what is going on around you and prioritize what is most important to you.  Remember that there are many resources to help you re-establish normalcy in your life and the lives of your children.  If you are struggling with a circumstance that sounds like one of the above scenarios, consulting an experienced attorney who can provide you with guidance and options can put you on the right path to a better future for yourself and your children.

Jonathan Dana is a family law attorney and founding partner at Tucker. For more information about divorce options, including litgation, email jdana@tuckerfamilylaw.com or schedule a consultation here.

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