In those cases in which mediation, collaborative divorce, or other alternative means of dispute resolution are not viable alternatives, spouses will litigate their divorce in the traditional manner. Typically, each will retain a lawyer to represent him/her and communication will occur between the attorneys by letter, phone or e-mail.
One spouse must file a complaint for divorce with the court and the other has various options for responding. The court will then enter a case management order directing how the parties are to exchange discovery (information and documentation), and scheduling the Early Settlement Panel, pre-trial conference dates and trial dates (in some counties).
Before or during the period of discovery, the spouses may also engage in “motion practice,” wherein one party may file an application (a notice of motion) with the court seeking specific relief.
The most common types of motions are for pendente lite (pending litigation) relief, wherein a party seeks a temporary order to be set during the course of the litigation until a final determination is made or there is a settlement agreed upon. Often a spouse will file a pendente lite motion for temporary support or a temporary custody and parenting-time arrangement. After all discovery is exchanged between the spouses, they will be required to attend the Early Settlement Panel (ESP).
The attorneys will submit memoranda to the panelists prior to the ESP date. The panelists (two experienced family law attorneys) will review the memos prior to the ESP and meet with the attorneys only on the date of the ESP. After they have discussed the case and the attorneys have presented their arguments and positions, the panelists confer privately, then bring the attorneys back into the ESP room to deliver their recommendations as to how they believe the case should be resolved. The attorneys then meet with their individual clients to discuss the recommendations. If one or both parties do not accept the recommendations, the judge will schedule the case for trial. In some counties, after the ESP, the court will order the parties to attend post-ESP mandatory economic mediation. Eventually, if the case is not resolved through mediation or negotiation, the case will be tried to conclusion and a judgment rendered by the judge.
Litigation is generally extremely costly.
The goal of the court is to have a case tried to conclusion and a judgment of divorce entered within one year of the date that the complaint was filed.