Litigating Your Divorce: It Doesn’t Have to be That Way

By David DePuy

The New Hampshire statutes and court rules set forth the procedures for initiating and litigating a divorce proceeding beginning with the filing of a Petition by the Petitioner and an Answer by the Respondent.  Thereafter, the Court rules govern the divorce litigation process.  Litigation of a divorce is expensive, time consuming and can drag on for a year or longer.  While the aim of divorce litigation is to obtain a just resolution of the breakup of the marriage, by opening the door to the courthouse, the parties wind up spending a lot of money contesting matters that, although felt to be of great importance at the time, are often transient, involving issues which are temporary and often increase the hostility of the proceedings.  Words spoken cannot be taken back and those that are put in written pleadings are forever memorialized.  Furthermore, the court rules set deadlines with regard to discovery, including the submission of interrogatories, requests for production of documents, taking depositions, production of expert reports, the automatic disclosure of a host of financial records, including 6 months of credit card statements, 12 months of bank account statements, investment accounts, retirement accounts, and other records.  For business owners the automatic disclosure rule, family Court Rule 1.25-A, requires the disclosure of monthly, quarterly and year-to-date financial statements, including profit and loss statements, balance sheets for the year that the divorce petition is filed and year-end financial statements for the prior year.  All such documents are to be produced within the earlier of 45 days from the service of the divorce petition or 10 days prior to the first hearing.  That first hearing is usually the temporary hearing.

While the goal of filing a divorce petition is to obtain a Final Divorce Decree, the first order of business is to establish, either by agreement of the parties or by a temporary order of the Court, following a hearing, the rights and obligations of the parties while the divorce action is pending, including temporary orders regarding child support, alimony, use or control of real estate, control of investments and businesses and other financial matters.  In short, initiating the divorce process by filing in court is often the beginning of an onerous, expensive, protracted, contentious battle that often emotionally scars the parties and children involved and results in significant attorney’s fees that might otherwise have been avoided.  While under some circumstances, filing in court is necessary to obtain a restraining order or other immediate relief or because one party is recalcitrant or non-compliant with the production of necessary financial and other documentation, very often the parties can informally exchange information and avoid needless motion hearings in Court, formal depositions and unnecessary discovery and many controversies that arise in court litigation.  There are alternatives.

One alternative is to exchange financial information by agreement as each party deems necessary prior to commencing a court action and then immediately proceed to mediation to resolve issues, including a parenting plan if children are involved, and all financial matters, including child support, alimony and the division of assets.

Mediation affords the parties more control of the divorce process.  It requires compromise to succeed, but it results in a negotiated divorce decree that the parties agree to sign and submit to the Court for approval.  The alternative is a lengthy, expensive process resulting in a judge issuing a decree following trial that may make neither party happy.  And before you get that trial, the Court rules require that you first engage in mediation to try to settle the divorce by agreement.  In short, since you are going to have a mediation after months of expensive litigation, why not engage in mediation first?

The mediation process is far more informal than a trial.  No one is called to the stand to testify.  There is no formal introduction of exhibits.  There is no judge deciding issues.  Normally, the lawyers for the parties engage a mediator to help negotiate an agreement.  A date for mediation is then scheduled.  At the mediation, the parties and their counsel normally briefly meet together with the mediator who explains the process and how the mediation will be conducted.  The parties and their lawyers then move to separate rooms and the mediator shuttles between rooms conveying proposals that evolve as the mediation proceeds.  Mediations are successful in settling cases most of the time; perhaps 90% or more.  Having the parties in separate rooms avoids much animosity, and having the mediator convey settlement offers helps convey the proposals with a bit of diplomacy and very often, with the advice and opinion of the mediator.  Mediators are impartial.  Most are retired judges or marital masters, or experienced divorce lawyers.

If the divorce is settled at mediation, the final agreement is filed with the Court which normally approves the settlement, thus eliminating a trial, possible appeal, possible retrial and continuing, often very large, legal bills.

There are cases where litigation is needed to obtain a Court order regarding necessary relief, or to obtain compliance with requests for financial information and other discovery or because of the intransigence of one or both of the parties.  In most divorce cases, however, mediating the matter with legal representation before suit is brought is a much more efficient, less expensive and less traumatic way to go.

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