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Litigation
1. Advantages to Litigation
- The filing date of the Complaint for Divorce is utilized for the date of the termination of the marital property for many purposes, whereby all assets and liabilities in existence on that date are subject to distribution, but perhaps not assets or liabilities acquired after that date. Thus, there is a financial protection given to the parties by simply filing the Complaint. However, there are different issues that are involved in determining the date for the distribution of property, and there are many issues regarding the subsequent change of value of passive or active assets, or subsequently acquired assets or liabilities, that may give rise to distribution or a claim to assets, despite the filing of the Complaint. If the parties believe there may be immediate need to protect their subsequently acquired assets or income, or to shield oneself from their spouse's liabilities, then litigation as an option to divorce must be given further consideration.
- By immediate commencing the litigation, the party has the right to obtain immediate orders from the Court. Some important immediate orders include
those involving custody of children, parenting rights and removal of the children from the state or country. Also, the parties can seek an immediate Temporary Order of Support, or maintenance of life insurance to secure support obligations. The parties can also obtain an order preventing the dissipation, sale or destruction of assets, or restraints against utilizing credit. All orders can be enforced by the Court.
- The litigation required the parties to make certain financial disclosures under oath, and false statements are subject to penalities under law. The parties can also seek additional financial disclosures by seeking what is called discovery. The attorneys can send written questions to be answered under oath subject to the same consequences. The parties may also request the production of documents, take depositions of their spouse or other persons under oath, and seek third parties (such as banks, accountants, credit card companies) to produce documents. While the parties do produce financial information in the alternative dispute methods, these proceedings do not have the same standard for false financial disclosures.
2. Disadvantages to Litigation
- It is an adversarial proceeding. The adversarial nature of the proceedings and negotiations sometimes has adverse consequences on the relationship between the parties during and following the case. This can be particularly difficult when children are involved, and there is a need to continue to co-parent following the completing of the case. For these cases involving children, the adversarial nature of the dispute between their parents can have many different negative consequences.
- Confidential financial and personal matters become public record and may be open to scrutiny.
- Negotiations during the litigation frequently take place in crowded courthouses under deadlines from the Court, which many feel create undo pressure and lack privacy.
- If it is the judge who makes the decision, you surrender the power to determine the terms of the decision, and you lose the option of creative and more thoughtful solutions that may be better for both parties.
- The costs can be significantly greater than a Collaborative law or mediated case. A case to be tried to completion with the judge making the decisions can be extraordinarily expensive. Also, there are many different court appearances required by the attorneys during the course of the case, and many hours spent waiting at the courthouse due to the limitation of the Court's resources, that will be charged. In Collaborative law, the parties can minimize the unnecessary attorneys fees that are generated through the litigation by virtue of the Court's requirements.
- There is an inevitable increase in hostility and conflict which comes out of
adversariallitigation.
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Providing clients and their lawyers with a new, formal and strictly non-adversarial approach to resolving legal disputes.
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Contact Us
Please review our site for how The Law Offices of Linda L. Piff, Esquire, P.C. can assist you with your family law matters. If you have any questions, or would like to speak with someone personally, please feel free to contact us.
Law Offices of Linda L. Piff, Esquire, P.C.
1540 Highway 138
Wall, New Jersey 07719
Ph: (732) 556-0240
Fax: (732) 556-0246
Email: lindap@lindapiff.com
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