Divorce Litigation--Myths and Truths

 After considering the timeline of Divorce Litigation and the Pros and Cons, it is important to consider some misconceptions about the process.  Here is a sampling of “Myths and Truths” that I have encountered during my career:

 

               MYTH 1:              It is the “only” option in high-conflict situations

 TRUTH:                Absent concerns regarding domestic violence, Private Dispute Resolution can work in high-conflict situations.  The simplest reason for being able to utilize PDR in high-conflict cases is because you have the ability to hire an arbitrator to act as the judge in your matter.  More relevantly, high-conflict cases often result in the parties hiring various professionals to perform evaluations, something that can easily be accomplished in high-conflict cases.  Don’t allow the notion that your spouse will be “difficult” dissuade you from considering Private Dispute Resolution.

               MYTH 2:              You must file a Complaint to establish a “cut-off” date

TRUTH:                Parties are free to sign a “Cut-Off Date Agreement” which establishes the cut-off date (i.e., the relevant end date of the marriage for valuing assets and liabilities and for determining the length of the marriage for purposes of alimony, etc.).  This agreement can stipulate that it will remain in effect even if the parties proceed to divorce litigation.

               MYTH 3:              In Divorce Litigation, you can obtain timely decisions/orders

TRUTH:                Sadly, the notion that the court system is able to provide swift justice is not reality.  Quite often, especially in the middle of litigation, the Courts refer the parties to mediation before they make any decisions.  Similarly, in order to get the Court to consider your request, you must file a Motion—with Motion practice often taking up to 2 months to be completed.  Since you can set your own timeline and schedule in Private Dispute Resolution, you are actually more likely to get a timely resolution to interim issues.

               MYTH 4:              Absent Divorce Litigation, you have no way to obtain all financial records

 TRUTH:                While you must have an open “docket” to serve subpoenas, you are always free to request and receive financial records upon the execution of an Authorization from the other party.  There is simply no reasonable argument for not providing financial records while engaged in any of the PDR modalities, and even if you are ultimately forced into Arbitration the Rules of Court permit issuance of Subpoenas in the midst of Arbitration.

 There are many other misconceptions about the Divorce Litigation process—and more importantly about it being your “only” or “best” option—so stay tuned for future posts which will indirectly clarify some pertinent issues in considering the pros and cons or myths and truths of the Private Dispute Resolution alternatives.

David Cardamone