What Is Litigation
Litigation is the formal court process where a judge resolves disputed issues in your divorce. Unlike mediation or negotiation, litigation means your case goes before the court, which decides property division, custody, spousal support, and child support based on state law and evidence presented.
When Litigation Occurs
You enter litigation when you and your spouse cannot agree on one or more divorce issues. This differs from an uncontested divorce, where both parties agree on all terms. Common contested issues include:
- Custody arrangements and parenting time schedules
- Division of marital assets and debts
- Spousal support (alimony) amounts and duration
- Child support calculations above or below state guidelines
The Litigation Process
Litigation follows a structured sequence. You file a complaint or petition with the court, which triggers a waiting period (typically 6 to 12 months depending on your state). During this time, both sides exchange financial documents and evidence through "discovery." Pre-trial conferences may narrow remaining disputes. If settlement fails, the case proceeds to trial, where a judge hears testimony and makes final decisions.
Most states require parties to attempt alternative dispute resolution before trial. Some jurisdictions mandate mediation for custody disputes. Filing fees range from $200 to $500 depending on location, and attorney costs typically run $150 to $400 per hour.
State Law Variations
Litigation outcomes depend heavily on your state's family law statutes. Most states follow "equitable distribution," dividing marital property fairly but not necessarily equally. Others apply "community property" rules, which split assets 50-50. Child support follows state guidelines that calculate percentages based on combined parental income, usually ranging from 17% to 25% for one child. Spousal support duration depends on marriage length and earning capacity differences.
Costs and Timeline
Contested divorces take significantly longer and cost more than uncontested cases. Litigation typically lasts 1 to 3 years, with total attorney fees ranging from $5,000 to $50,000 or more if the case is complex. Custody disputes and high-asset divisions push costs higher. You'll need to budget for court filing fees, expert witnesses (custody evaluators, forensic accountants), and potentially appeal costs.
Common Questions
- Do I need an attorney for litigation? Yes. Court rules and procedural requirements are complex. Self-representation in contested divorces often results in unfavorable outcomes, missed deadlines, and procedural errors that harm your case.
- Can I still settle after litigation starts? Absolutely. Most cases settle before trial, even after formal litigation begins. Settlement at any point saves time and money compared to a full trial.
- What if I disagree with the judge's decision? You may appeal to a higher court within strict timeframes, usually 30 to 60 days. Appeals are expensive and success requires demonstrating legal error, not just disagreement with the outcome.