Your spouse, former spouse, or former partner comes to you and proposes that you resolve your divorce, financial, or custody dispute through the Collaborative process (a formal arrangement to resolve your matter without any court involvement with the help of a team of professionals) or Mediation (working with a neutral to facilitate settlement), rather than proceed with a contested litigation process. You don’t want to have a judge make the decisions for you through a trial. The two of you agree you can work through your issues without a judge and do not want to go to court, so going with the collaborative process or mediation are your only options, right?
Wrong! A common misconception is that by choosing to litigate your family law matter by filing with the court from the start, you must eventually have hearings with a judge. This is simply not the case. In fact, the vast majority of cases are settled before the matter is decided by a judge. Under the current family law procedures in Connecticut, your entire matter can proceed without a court appearance if you have an agreement.
There are several mechanisms in place to resolve your matter outside of the courtroom even if you have opted for the litigation route. These include having meetings with counsel and parties to work on a settlement; exchanging written settlement offers; mediating with a retired judge or other private individual; using the Connecticut court’s mediation programs; or using the Connecticut court’s pretrial settlement conference programs. While using the Collaborative process or mediation may be the right option for your matter, you are not limited to those options and, in fact, there may be reasons not to choose these paths for your individual circumstances.
Filing a Divorce Case with the Court Puts Protections in Place
The collaborative process or mediation process often begins and proceeds for a period of time without the filing of an action in court. However, when you file a divorce case with the court, you put in place the protections of the Automatic Orders. (Read more about the Automatic Orders here.) For the person who initiates the proceedings, these orders go into effect when the divorce paperwork is signed, and for their spouse, when the paperwork is served. They protect the status quo while the case is pending and ensure, among other things, that assets are not removed from the marital estate or improperly spent. The available remedies for these types of actions are more limited in the context of a collaborative process or mediation, when the automatic orders are not in effect and when the remedy of a contempt finding (a sanction for a willful violation of a clear and unambiguous court order) is not available.
A pending court case also provides the formal protections of discovery, the formal exchange of documents and information while a case is pending. While there is often an exchange of financial information and documents in the context of a mediation or Collaborative process, it is an informal exchange. Therefore, if an individual refuses to provide documents or information, there is no remedy available other than terminating the Collaborative process or mediation proceedings. If a case is pending with the court and the same documents are requested through the formal channel of a document request, there are remedies available through the court for failure to comply with the request. These remedies can range from a court order to comply and provide the documents to financial and evidentiary sanctions in more extreme cases.
Additionally, in the event there is a sudden change that creates a time-sensitive need for court intervention on a financial or custodial issue, that situation can be addressed more readily when there is already a case pending. While a person will still be able to get into court relatively quickly for a true emergency, there are a plethora of matters that do not constitute an emergency under the law, but are still urgent. In these circumstances, a case must be pending to make a request to a judge for an immediate hearing.
These are just some of the considerations as to why choosing to traditionally litigate your matter may be the best option for you. One can still have a collaborative experience in litigation if both parties are in agreement to work collaboratively outside of the courtroom.
The attorneys in Pullman & Comley's Family Law practice can help you weigh these options against your individual circumstances and select the path that best fits you.
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