The Top 3 Reasons Why Divorce Litigation Goes to Court
1. A Major Disagreement Over Custody or Visitation Rights
One of the main reasons why divorce litigation cannot be negotiated without a judge is parents often find it difficult to agree on child custody or visitation rights.
The idea that parents may not see their children as often as they like is devastating, and parents often cannot create or accept an agreement that is in the best interests of their children.
Often both parents want to be the primary physical custodian and find it difficult to agree on a realistic arrangement. If the spouses live far from each other, then it is especially challenging to develop a reasonable schedule that is healthy for the children.
If one parent believes the other to be unfit to provide a safe home and basic life necessities, then the child custody and visitation process is substantially more complicated and thus more likely to go to trial.
With child custody cases, there are two types of custody: physical custody, referring to the person that the children live with, and legal custody, referring to the person who has the main authority on significant life decisions regarding religion, education, extracurricular activities, and medical treatment. Both types of custody can be either joint custody that is shared, or sole custody, which means that one parent is the primary custodian.
2. Major Disagreement Over the Division of Assets
Many states, including California, are “Community Property” states, which means that courts rule with the principle that spouses equally own and share all financial assets and debts that they have accumulated during their marriage.
Splitting financial assets equally, however, is not always a straightforward process. How do you split a vehicle or real estate? Does either person get to keep the property or does it need to be sold so the money can be split easier?
When spouses cannot create an agreement then they may go to court so that a judge will make the decision for them.
With spouses who own smaller estates, it may not make sense to go to trial for property division, since the court fees may outweigh or come close to the amount of the undisputed property.
With high-asset divorce litigation, however, spouses often are comfortable with going to trial since investing in comprehensive litigation can provide the best fiscal opportunity.
3. Disputes Over Alimony Payments
Alimony is the legally mandated payment from one spouse to another. Alimony is awarded to the “dependent spouse” and is paid by the “supporting spouse”. Alimony payments are common when one spouse does not work as much as the other to provide care for children or a family member. Alimony can also be awarded in other cases in which one spouse is substantially dependent on the other for income.
Alimony can either be paid as a continued schedule of payments or in one lump sum. Due to the ambiguity of alimony and the variety of factors, cases involving alimony often go to court to determine a fair and accurate amount and schedule of payments.
Alimony is rarely permanent and the dependent spouses are encouraged to at least be partially self-supporting, or the payments may be revoked. Alimony ends or is altered after a significant life event such as a remarriage, retirement, when one spouse obtains a new job, or in the event of the death of one of the spouses.
Alimony is especially contested in court litigation since the payments are made after the equal splitting of property. Though the judges only award this when they determine that it is the fair and lawful course, often the dependent spouses believe they should be awarded more money while the supporting spouses want to pay less. The determination of alimony payments tends to be a particularly contested topic that often pushes spouses to go to trial.
LPEP Will Try Their Best to Settle Before Court
While there is significant pressure to settle divorce disputes, we understand that it is not always possible. At Lonich Patton Ehrlich Policastri, we prepare all of our cases for trial even as we work toward a settlement. We have fought for our clients before and know how to help you succeed.
LPEP is a reputable firm serving the San Jose and Santa Clara greater areas. Unlike most family law firms, our lawyers have experience with negotiation in court. Our experience with high-asset divorces in San Jose and Santa Clara, along with our reputation with successful child-custody cases makes us the best choice for your divorce litigation.
Our first objective in any divorce matter is to exhaust available settlement options, which also include mediation, use of private settlement judges, and other forms of collaborative law that do not require going to court.
We recognize, however, that the animosity created by a divorce can often impede effective child custody, property division, and alimony negotiations. In contentious cases, our team of family law litigators is well-equipped to prepare your case for trial from beginning to end.
What to Expect If Your Divorce Litigation Goes to Trial
At LPEP, we strive for efficient and effective court litigation. Unfortunately, the extensive trial process sometimes means that the trial will consume several months or more than one year. The more complicated the case, the more likely it will be that the trial is lengthy.
It is critical to understand that divorce litigation is highly contentious and can be expensive. Much of family law litigation involves discovering existing financial assets, calculating child support, assessing the needs for spousal support, and making child custody determinations.
If you want to give yourself and your children the best outcome, you must hire a reputable family law attorney. Only experienced trial attorneys will be able to do their best diligence during the discovery phase of aggregating information.
During the discovery phase, attorneys will gather information to support your family law case. This includes information such as:
- Depositions – oral interviews that lawyers conduct with the presence of a court reporter to transcribe the interviews
- Subpoenas or Document Production Requests – formal requests to financial institutions to generate and submit records
- Interrogatories – formal written requests in which someone must submit a written response
Why is LPEP Your Best Choice for Your Divorce Litigation?
At Lonich Patton Ehrlich Policastri, we make every effort to resolve these disputes without going to trial, falling in line with California court rules that require participation in a mandatory settlement conference before bringing a case to trial.
With our broad litigation experience, we are able to develop effective and innovative courtroom strategies aimed at achieving our client’s objectives. In addition, our understanding of family law and the divorce litigation process allows us to effectively evaluate when it is appropriate to appeal a divorce decision.
In Santa Clara, San Jose, and surrounding areas, Settlement Officer Conferences and Judicial Custody Conferences are typically set at the outset of a case, and can often narrow the issues that need to be tried before the judge.
Experienced trial lawyers are uncommon in the family law field, but not at Lonich Patton Ehrlich Policastri. Founding partners David A. Patton and Michael E. Lonich began their careers over twenty years ago as litigation attorneys and have continued to hone and finely tune their trial skills since founding the firm in 1994.
Partners Mitchell T. Ehrlich and Gina N. Policastri, who both began their careers at Lonich Patton Ehrlich Policastri over a decade ago, have become seasoned family law litigators in their own right. Both have met the rigorous requirements for family law certification with the California State Bar, one of which is the completion of at least five family law trials.