United States: Only You Can Decide When and How to Proceed in Divorce

Last Updated: November 2 2013
Article by Robert A. Epstein

A new season of NBA basketball got underway last night and my attention was focused on the Bulls-Heat game for one particular reason – Derrick Rose.  For those of you who are not familiar with Rose, he is one of the premier players in the league and known for playing the game without fear.  He is far from the tallest or biggest player in the league, but that never stopped him from charging down the lane while making the sort of shot or pass that only a handful of people in the world could ever make.

In the first game of the first round of the playoffs two years ago, however, Rose tore his ACL and proceeded to miss all of last season, including the playoffs.  After a period of recovery time, it was revealed that he was medically cleared to return to game action.  Rose, however, said that he was not ready to return.  Many commentators called his decision into question, concluding that he was mentally afraid of re-injuring himself, and that he would never be the same player that he once was.  Last night was, as a result, his first regular season game in more than a year.  While he was rusty, it seemed apparent that Rose's decision to return when ready was the best move that he could make for himself and his team.

What, you may wonder, does this have to do with divorce?  Like Rose, a divorce litigant has to be comfortable with every move being made on his or her behalf.  Each step of the way during a litigation should be considered and understood to ensure that the right path is being taken.  Some of these choices are not only difficult, but can prove financially costly, so there is no reason why you as the litigant should not be sure that the decision being made is the right one for you.  These decisions vary on a case by case basis, but may include (and are not limited to):

1. When to file the Complaint for Divorce – Oftentimes, a litigant will try to settle a case before filing a Complaint with the court.   This decision has a number of ramifications that can impact timing, negotiations, cost, and more.  After a Complaint is filed, the judicial system will compel the parties to try and settle at many different points during a litigation (mediation, early settlement panel, intensive settlement conferences, and the like), so even determining when to file is not always an easy decision.

2. Discovery – Depending on the complexity of a given case, a litigant may choose to waive his or her right to engage in certain forms (or all) of discovery including, but not limited to, the procurement of documents, certified answers to specific questions, the taking of depositions, and the like.  Discovery is often a vital, but potentially costly, part of the litigation process.  It is, therefore, imperative that you, as the litigant, are fully aware of all positives and negatives of conducting and/or waiving discovery.

3. Settlement or Trial - While 98% of cases settle, sometimes a case just has to be tried.  Whether it is because the parties just simply will not agree, or one party refuses to be reasonable, or there is a legitimate issue of business valuation, income and the like, or something else, trial may be unavoidable.  The decision becomes somewhat easier when one party is being so entirely unreasonable that the other party simply has nothing to lose by going to trial, even though counsel fees incurred may not subsequently be awarded after trial.  Oftentimes, the unreasonableness of one party's position and/or intent to proceed to trial is smoked out through settlement efforts, mediation, and the like, at which point the litigant will know whether trial is inevitable.  Then, perhaps arbitration, rather than a trial in court, is a more preferred forum depending on the facts of your case.

4. The Right Lawyer – We have blogged on many occasions about selecting the right lawyer for you.  Every lawyer is different.  Every lawyer has his or her own personality, style, reputation, litigation approach and the like.  Finding an attorney that is your right "fit" may, as a result, be the most important decision you make during the process.

5. Expert or No Expert – Recently I advised a client to retain a "vocational expert" to render an expert opinion as to his wife's earning capacity for the purpose of determining alimony and child support.  The deadline for the issuance of such a report was looming, and the client was unable to make a decision despite my recommendation, before ultimately deciding not to do so.  Retaining an expert is by no means an easy decision, and should be made carefully, largely taking your attorney's recommendation into account due to his or her experience on such issues.

There are many other issues and questions that will likely confront a litigant.  Like Derrick Rose's decision when to return to the basketball court, a litigant's decision on how to proceed should be made carefully and with confidence that it is the appropriate time and path to take.  Ultimately, the decision is yours to make.  Otherwise, you may proceed down a course that you are not mentally or otherwise prepared to take, which can only be of a disservice to you and the ultimate outcome of your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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