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When to litigate · Family Law Talk

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  Speaker 1: Welcome to Family Law Talk. Family Law Talk presented by
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  Kirk Stangy of Stangy Law Firm DC. Stangy Law Firm
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  is a multi state family law firm. Now here's your host,
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  Kirk Stangy.
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  Speaker 2: Welcome to Family Law Talk. We have an interesting topic today.
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  The topic is when to litigate? In this episode today
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  is based on an article on our blog, Bloomingtonildivorceblog dot
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  com dated February two, twenty twenty four, and the title
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  of that blog article is when.
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  Speaker 3: Is litigation the Right Option?
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  Speaker 2: So as a follow up to the episode today, go
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  on over and read the article titled when is litigation
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  the Right Option? It'll give you more information on this
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  topic for those seeking it, and it'll definitely give you
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  some more information. But let's go ahead and jump into
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  the topic at hand, and that is when to litigate.
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  Most individuals do not want to litigate. They seek a
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  settlement to their divorce or family law matter. The reality
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  is most individuals, if they're reasonable, if they're cautious, if
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  they're prudent, they want to have enjoyment out alive. The
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  last thing they want to do is be in the
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  family court litigating their case. Most individuals want to settle,
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  but the truth is, sometimes that's not plausible, it's not possible,
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  and the only way to really get there is to
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  reach a bad settlement, which ultimately can be an impediment
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  for a person in terms of enjoying time with their
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  kids or being on a financially sound footing, let's say.
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  And so settlements just not an option. So in terms
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  of when to litigate, well, look, the most common type
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  of case it has to be litigated is a contested case.
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  A contested case is where parties do not agree on
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  the outcome of the case at hand. So take a divorce, Okay,
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  In some divorce actions, one party might want the divorce
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  and the other might not want the divorce, and we
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  call that a contested divorce. But in some divorce actions,
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  one party wants a divorce and the other party wants
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  it too, and so it's not contested in a technical sense.
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  But the problem is a party is still not still
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  do not agree on the outcome itself. So maybe they
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  don't agree on how marital property and data is going
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  to be divided. Maybe they don't agree on child custody,
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  and that includes legal costody and physical costody. I know
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  in Illinois the terms used over there a little bit different,
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  allocation of printal responsibilities and parenting time, but we're talking
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  basically the same thing. And so parties oftentimes aren't able
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  to agree. Could be child support, spousal support, or the
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  payment of attorney fees, and where parties can't reach a
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  middle road if they can't settle, these are the cases
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  that have to be put in the hands of a judge.
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  They're contested cases, okay, and so the only way to
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  really resolve a contested case is for one party to capitulate,
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  for the parties to meet in the middle somewhere, which
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  is the hope for most individuals, or the judge has
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  to do. The case has to be litigated, all right.
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  But to sort of piggyback on this further, oftentimes folks
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  wonder what types of cases need to be litigated, and
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  again I'm painting with a broad brush. There could be
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  other circumstances out there as well that could really call
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  for a case to be litigated. But take cases where
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  parties aren't able to reach solutions, or maybe they can't
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  speak with each other, that could make it very difficult
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  to settle the case. And this could even include the attorneys.
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  In cases where attorneys don't work together, well, they're not
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  trying to seek out a settlement, they're not trying to
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  reach the middle road. And these kinds of cases, unfortunately,
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  settlement is very hard and cases often have to be litigated.
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  Another circumstances where one spouse is unwilling to make any
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  compromises or discuss important matters. In other words, they just
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  want things the way they want them, whether it's reasonable,
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  whether it's fair, they just want what they want. And
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  it's hard to settle with somebody who just wants certain things.
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  They don't move off it, and even if you try
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  to compromise with them, you know they'll move off these
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  compromises quickly. And these kinds of circumstances, unfortunately, it oftentimes
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  has to be put in the hands of the judge
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  because you can't settle with somebody who's not willing to
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  compromise on important matters all right. Another situation where litigation
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  might be needed is where one party has more financial
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  resources than you, and where the other party has more
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  financial resources. Oftentimes they can become more unfair than negotiations,
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  more unreasonable, and they think that you know, look ultimately
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  they can break you by litigating this case, and so
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  for individuals in this circumstance, unfortunately, the only real solution
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  is to either capitulate or litigate the case and hope
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  that the judge does better. So this is a common
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  reason why lots of cases have to be litigated. Say
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  you're facing unfair property divisions, spousal support or child support request.
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  So the other parties just not putting stuff on the
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  table that's fair and reasonable. It's not within the realm
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  of what the judge would do. So in these kinds
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  of circumstances where a party is presented with settlement offers
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  that are outside the realm of fair and reasonable, it
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  oftentimes makes sense to try the case because why would
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  you agree to something that the judge wouldn't even do
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  if the case went to trial. Okay, obviously nobody knows
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  for sure what a judge is going to do, but
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  most of the time attorneys know within a range generally
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  what a judge would or would not do, and so
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  in a circumstance where the offers are outside of that range,
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  why settle?
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  Speaker 3: Why not just litigate?
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  Speaker 2: Sometimes a spouse might purposely drag out discussions out of
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  spider manipulation. They like to keep the drama going. Unfortunately,
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  in these kinds of circumstances, litigation can often be unavoidable.
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  It can also be the case where one party is
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  emotionally abusive, maybe financially abusive, and in these kinds of
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  circumstances it can be very difficult to settle with somebody.
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  Another circumstance it often results in litigation is where one
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  party feels as if they are in danger or their
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  kids are in danger, and so obviously, to protect themselves
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  and to protect them protect their kids, oftentimes litigation might
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  be the only option that's out there.
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  Speaker 3: Now.
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  Speaker 2: Look, lots of individuals ask, well, what are the downsides
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  of litigation, and look, they're numerous. There are lots of
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  downsides de litigating. In any party who's got to litigate
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  has to take fees into account. Okay, so higher attorney
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  fees and core costs. Obviously, if you litigate a case,
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  it's going to cost dramatically more and so a lot
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  more attorney fees and core cost Obviously, the process also
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  takes longer. If parties can settle, the case can often
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  be done much quicker. But if you've got to wait
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  for trial date. It can take many months, sometimes more
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  more than a year. Even litigation requires that the court's
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  availability come into play, so you can only have motions
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  heard and trials conducted based on the judges' schedule. Lots
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  of judges are very busy, very backed up, and that
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  can cause the process to be much longer. Another downside
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  of litigation is the stress, the anxiety of it. You know,
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  having to go into court being worried about what a
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  judge may or may not do can be very stressful
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  for a lot of individuals and that is obviously a
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  downside to litigation for those who really struggle managing their
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  stress level during litigation. Obviously, litigation can be hard on
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  the kids, and that's particularly true where kids end up
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  having to testify or become involved in the proceedings. It
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  can be a very detrimental thing on the kids. Another
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  downside to litigation is proceedings in many respects or public record.
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  Now there's some exceptions in the FAMA, loss fear, obviously,
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  paternity cases, juvenile cases. Those cases are typically confidential, but
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  check with a lawyer and your jurisdiction who can enlighten
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  you on how it works in your specific locality, but
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  the publicness can be tough, and certainly divorce and family
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  law matters can sometimes hit the press, get media attention,
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  and that can be a big downside to litigating a
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  divorce or family law matter. All right, lots of individuals
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  and ask, well, what happens when a case go to trial?
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  It goes to trial, like, how does this work? Well, again,
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  every jurisdiction is different, Every court might handle this a
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  little bit differently. Okay, So speak with a lawyer who's
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  licensed to practice law in your jurisdiction. But in a general sense,
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  there's a petitioner and there's a respondent. The petitioner is
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  the individual who filed the case first. They're responded is
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  responding to it, all right. Typically the petitioner goes first
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  to trial, and this would be the case and the divorce,
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  let's say, and they would put on all their evidence,
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  call their witnesses, and present their case, and the responder
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  would cross examine these witnesses.
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  Speaker 3: At trial.
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  Speaker 2: At the conclusion of the petitioner's case, the respondent then
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  puts on their evidence, calls their witnesses, and then the
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  petitioner is able to cross examine those witnesses if there's
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  a guardian at lightem they might be able to call
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  witnesses and present evidence as well, and then at the
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  conclusion the judge has to make a decision. Now, some
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  judges will allow an opening statement and a closing statement
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  as part of a case, and that's going to vary
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  by the jurisdiction as well. But at the conclusion of
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  the case, the court has to weigh the evidence, apply
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  the statutory factors and come up with a decision. And
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  trials and a divorce or family law matter can vary
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  in terms of the time length. That could be a
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  few hour, it could be a day, it could be
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  multiple days. It just depends on the case and the complexity.
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  All Right, lots of individuals ask is it better to
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  be the petitioner the respondent in these kinds of cases.
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  And what I've always told individuals for years is that
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  it depends.
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  Speaker 3: There's not a black or white rule.
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  Speaker 2: But let me give you some of the pros to
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  being the petitioner, which is, you can choose the county
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  which the case is filing. So in some cases there
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  might be a question about County A or County B,
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  and petitioner if they filed it first in a particular
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  county and they want it in that county. That could
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  be an advantage to filing first. Petitioners also get to
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  go first to trial. As I said before, there can
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  be an advantage in some circumstances to really issue framing
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  the case, presenting your evidence first before the court, and
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  so that might be advantageous. Also, if you're filing first,
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  you have time before you file to find an attorney,
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  so maybe you're not in such a rush. Maybe you
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  can take your time, meet multiple attorneys and make your decision. Okay,
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  So these would just be the pros in terms of
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  the cons or what the pros would be for the respondent. Look,
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  being the respondent can have some advantages. Sometimes it can
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  be better to CounterPunch. Sometimes it can be better to
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  hear the other side's evidence and testimony and then call
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  your own witnesses after the fact.
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  Speaker 3: Okay.
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  Speaker 2: If an individual doesn't want a divorce, let's say, they
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  can also file an answer that denies the marriage as
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  irretrievably broken, let's say. Or they can seek to dismiss
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  the case if they don't want the litigation to be
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  filed to begin with. So these could be advantages to
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  being the respondent. All right, lots of individuals past this
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  ask well, how long can a case take? How long
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  can it be drug out, let's say, and look can
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  be very different based on the court, the jurisdiction, the judge,
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  the issues in the case. But oftentimes in order to
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  get a trial data it can take many months. Sometimes
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  it can take more than a year. And so if
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  a party's going to litigate a case, they have to
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  dig in and know that it's going to take some time,
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  and they've got to be able to deal with all
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  the things I referenced above, you know, the higher court costs,
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  the longer process, the stress, anxiety, and they have to
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  you know, bear all that and weigh it is I
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  said at the beginning, to resolve a case, which is
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  what most parties want to do, it really requires either
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  meeting in the middle, which is the preferred course of action,
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  or for one party to simply capitulate. But for a
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  lot of individuals, they don't want to capitulate and agreed
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  to things that are unfair, unreasonable that the judge wouldn't
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  even do. And so in these kinds of circumstances where
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  parties can't meet in the middle, parties not willing to
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  capitulate than unfortunately, trying the case might be the only option,
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  and so that that is typically the time to litigate.
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  So look as a follow up to the episode today,
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  going over to bloomingtonildivorceblog dot com read the article titled.
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  Speaker 3: What is litigation the right option?
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  Speaker 2: We'll give you more information on this topic, but I
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  appreciate you all tuning in today. Stay tuned our next
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  episode on Family Law Talk coming up.
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  Speaker 1: Thank you very much, Thank you for listening to Family
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