Most parties can resolve their divorce by agreement outside of a New York court, but there are many situations where litigating (going to court and the judge makes the final decision) the divorce issues can be the best option for a New York resident.
This is especially true in high conflict situations involving considerable marital assets – both circumstances quite common in New York splits.
Divorce litigation is often the last straw when arbitration and other informal negotiations have failed or when the process has drug on for far too long because one spouse is not acting in good faith or when emotional discord won’t allow a reasonable solution.
It is also helpful for the spouse who had previously been at a disadvantage in the marriage due to the other spouse’s overpowering personality or other uneven dynamics of their relationship.
Litigation can produce an ending to a situation that needs resolution – finality is a great thing for divorcing couples. In many cases the best choice is to go to court and deal with a judge (there is no jury in divorce cases)
When Divorce Litigation Is Most Valuable
While the majority of divorces do not require litigation, there are many circumstances when litigation best serves our client. When the relationship involved violence, litigation is necessary and the smart move - without question.
However, other common situations in which a party should consider litigation include:
- Intractable kinds of parental alienation, interference with parenting time and unfit parenting.
- Unexplained dissipation of assets – money the client thinks they had suddenly disappears.
- The spouses have completely “locked horns” and cannot (or will not) agree on anything, especially issues relating to children and money.
- One spouse is acting in a completely unreasonable manner and will not budge.
- Unique aspects to the divorce, beyond child support, property division and the like.
- If you think your spouse is about to go to court. Pre-empting their action by becoming the first one to go to court is often advantageous.
What a New York Matrimonial Court Can Do
The court (a judge) can compel complete financial disclosure if one party is suspected of hiding or dissipating marital assets. Should the spouse in question not comply, the court can compel sanctions and enforce its orders.
The Court may order the use of experts, set deadlines for receiving financial and other information, as well as issue an Order to Show Cause if one party is not following its orders.
The Court can grant the divorce even if the other spouse refuses to participate. The judge makes the decision after all evidence and testimony is heard, and the judge’s decision is binding – quite comforting when arbitration or mediation has failed, although either party may appeal a court’s decision.
Matrimonial Law Gray Areas
Unlike other types of law, matrimonial law has a lot of gray areas.
What was one party’s contribution to the marriage and what percentage should that person receive in equitable distribution? There’s no hard and fast rule in New York or elsewhere. One party may say 10 percent, and the other party may say 40 percent.
In a Manhattan divorce, that 30 percent difference can easily be worth millions.
In that event, the gray area is then a reason to gamble on whether you can do better by going to court than agreeing out of court. Obviously, if someone decides to go to court in a situation where there’s a gray area of law, they will want the best trial lawyer possible to get the best possible results.
Keep in mind that every judges handles things differently. Matrimonial law gives the courts so much discretion, it means judges can make decisions based upon broader parameters, and different judges have differing viewpoints.
When people want to know how the court might decide a particular situation, the only answer is “What judge and what time of day?”
Hire an Experienced Trial Lawyer
For these reasons, it is crucial to hire a lawyer who is in court every day rather than spending their days mediating or in arbitration as they will know all the judges. This lawyer has the experience of knowing how different judges think, because each judge is unique.
A settlement is still possible during divorce litigation, and sometimes the process itself will make a reluctant spouse agree to a reasonable settlement offer, especially after all financial information is disclosed.
Dror Bikel is one of an elite handful of matrimonial trial lawyers. He focuses on high conflict and complex divorce and custody cases, many of which are appropriately resolved in court. To connect with Dror: [hidden email]