What Happens During Divorce Litigation?

Sep 13, 2022

In California, there are several different ways to end a marriage. And—thanks to our friends in Hollywood—we’re guessing that divorce litigation is the one you’re most familiar with. 

Divorce litigation is a type of contested divorce, which takes place in a formal courtroom setting—complete with judge, gavel, and surly courtroom bailiff. Unlike what our movie friends would have us believe, however, this process is anything but glamorous. 

While this revelation probably doesn’t shock most of you, it may leave many of you wondering what does happen during divorce litigation… 

To set the record straight, here’s what really happens during divorce litigation, and what the Provinziano team can do to help this process run as smoothly as possible. 


What is Divorce Litigation?

Divorce litigation (or, “divorce trial”) is the most complex type of contested divorce in California family law. This process requires you to have a full court hearing, is highly structured, and begins when someone files a divorce complaint. 

After a case is initiated, a lengthy discovery period ensues, and, eventually, each partner has the chance to make arguments and present evidence at a formal trial. Most of the time, these arguments are made through a trusted, family law attorney (though, representation isn’t technically required).

As you can probably imagine, it takes a long time to filter through all the important issues at stake during a divorce, and once it’s finally done, it won’t be you who makes the final call on what to do. It’ll be your judge.

While litigation is a commonly portrayed type of legal proceeding on T.V., that doesn’t necessarily make it the best way to get divorced. This type of divorce is expensive, takes a lot longer than alternative methods, and offers couples the least amount of flexibility in settling their issues. 


What Happens During Divorce Litigation?

Because it comes with so many cons, litigation is usually the last stop on the divorce train; a place couples go only after exhausting all other options. Sometimes, however, it’s unavoidable (such as with domestic violence, or an uncooperative spouse). 

Here’s a closer look at what you can expect during this process, if divorce litigation is your only option.


Phase 1: Initiating Divorce Litigation

Litigation (along with all the other types of divorce in California) are initiated the same way: by filing a divorce complaint. 

A divorce complaint is a legal document, which informs the court of your intent to dissolve your marriage, and asks for their help in doing so. Along with other essential information, this document won’t be accepted unless it also lists your “grounds,” or, the reasons why you want a divorce. 

Once complete, you should deliver this paperwork to your county clerk, pay your filing fee, and notify your spouse via proper service. 

According to California family law, you do not have to have an attorney help you with any of this; however, trust us when we say that this is one expense you really really don’t want to cut out of your budget.  

Divorce law is complicated and nuanced, and, on your own, it’s too easy to make expensive—sometimes irreversible—mistakes. Hence, it’s much safer (and usually cheaper, in the long run) to simply make an experienced family law attorney part of your phase one planning. 


Phase 2: Consider Other Alternatives

While you’re waiting for your spouse to respond to your complaint (and soldiering through California’s mandatory wait time), start considering what type of divorce you want. 

As we’ve already said, litigation is not the best way to break up a marriage. While paying more money for something often means a better product, when it comes to divorce litigation, this isn’t the case. Indeed, for a steeper price tag, litigation offers a process that’s more time-consuming, emotionally toxic, and less flexible than other methods. 

Because of these reasons, most couples will at least try a different type of divorce, before heading to trial. 

Two great examples are mediation and collaborative divorce. Both occur outside of court, and do not involve a judge. As a result, negotiations can happen faster and on your own time. Which, in turn, means less expense, and gives you a lot more control in determining your own fate. 

Sometimes, however, extenuating circumstances make it impossible to divorce any other way. In these situations, the only option is to begin gathering evidence in preparation for trial. 


Phase 3: Gathering Evidence

Splitting one life into two is not an easy task; there are a lot of important rights and interests at stake, and—unless you have a valid prenuptial agreement in place—there’s a lot of information you’ll need to prepare, before heading to court.

This information gathering process is known as “discovery,” and it’s all about acquiring the evidence you’ll need to plead your case at trial, and answer important questions about:

  • Dividing assets and accounts;
  • Assigning marital debt;
  • Splitting retirement and investment funds; 
  • Who gets the family home;
  • Where children will live;
  • How much visitation time they’ll have;
  • Who will pay child support (and how much); as well as,
  • Whether or not spousal support should be required. 

The information you gather will be vital in helping your judge to see your point of view, and to ensure your division is equitable. Hence, it’s important to be as thorough and detailed as possible, when gathering evidence. 


Phase 4: Attend Your Trial

The final phase of divorce litigation is attending your trial, which is basically the legal equivalent of showing off all your hard-earned discovery in front of the class (or, in other words, your judge).

And it’s not just you—your spouse gets to show off their class project, too. (Again, why it’s important to be prepared). 

Exactly how long it takes your judge to settle each issue varies by case; however, it’s not uncommon for this phase of litigation to last months—even years. 

In the end, your judge will compile their decisions into what’s known as a final divorce order. This legal document summarizes your negotiations and outlines the logistics of how certain things (such as property division and child custody) will be handled, moving forward.

Generally speaking, couples will have very little say in what goes into this final divorce decree. Indeed, when you involve the court system in your breakup, you’re essentially giving up a lot of your autonomy to shape an outcome. And, unfortunately, you still have to comply with the terms, even if you don’t like them. 

Failure to comply with a divorce order can have some serious legal and/or financial consequences, and isn’t something you want to mess with. 


Making Litigation Better 

California is a no-fault divorce state, meaning blame and guilt don’t factor in when divvying up assets, and assigning alimony. It also means things go a little faster (relatively speaking) than in a fault state. 

That being said, litigation is still a marathon (not a sprint). And to help things really run more smoothly, you may want to consider some of these tips: 

  1. Be educated. As the saying goes, knowledge is power. Knowing what to expect from divorce (and the process) can both soften the blow of a disappointing decision, and help curb unrealistic expectations.
  2. Know what you want. Make a list of what you can’t live without, and enter negotiations emotionally prepared to part with everything else. Divorce goes faster, when you know what you want. 
  3. Come to court prepared. This means being on time, dressed appropriately, and armed with whatever information you’ll need to discuss the day’s agenda. 
  4. Compromise. Some things are worth fighting for (like the things on your “Can’t Live Without” list, for example). Everything else, though, isn’t. Hence, do yourself a favor, and don’t let pride get in the way of a good compromise. 
  5. Avoid cheap shots. When tempers are hot, it’s easy to digress into name calling and tantrums. This isn’t productive, and takes up valuable time.  
  6. Talk to a therapist. Therapy is a productive outlet for processing negative emotions during divorce, and can arm you with valuable tools for handling conflict. 


Are You Considering Divorce Litigation in California?

What happens during divorce litigation can be incredibly stressful—not to mention expensive, and time-consuming. On the bright side, with the right attorney, it doesn’t have to be as difficult as you might think. 

For more questions about what happens during divorce litigation—before, during, or after—we want to hear from you. Call Provinziano & Associates at (310) 820-3500, or get in touch online, and together, we can figure out if this process is right for you.