According to Merriam-Webster, litigation is an intransitive
verb, meaning: "to carry on a legal contest by judicial process."
Most think of litigation
as "going to court." Almost all
family law matters are a form of litigation, because they require the filing of
a petition with the court, and ultimately some approval by a judge is required
to complete the case - almost any case ends with a judge signing a judgment. This does
not mean that you must go to court to get a divorce, legal separation, or annulment in California, and most
cases are ultimately resolved by some form of alternate dispute resolution.
Litigation, in the
sense of having a judge make the decisions for you, is the result of the
parties' inability to resolve matters out of court. This may be caused by either a lack of ability to
communicate, unrealistic expectations by one party or both, distrust between
them, or an unwillingness to compromise issues where it is unclear what a judge
would do.
Often, litigation is
limited to initial hearings to set temporary support or custody: Once the parties get a dose of reality
from a judge, most are willing to sit down and resolve their disputes without
further court involvement. In a
few cases, there are legal or factual issues for which there is no obvious
resolution - experienced lawyers can try to find a compromise, especially where
the risks are all or nothing depending on what a judge may ultimately decide.
Unless you choose the
Collaborative Process, your lawyers can go to court when there is a lack of
agreement. In the Collaborative
Process, the lawyers sign a contract with you and one another that they cannot
go to court on your behalf - that biases them in favor of resolving matters
without court.
