considering a divorce in california

Articles By Attorneys And Scholars
About Family Law

Law Offices of Lowenstein Brown,
A Professional Law Corporation

San Diego's Divorce Lawyers
619 298-6246


By: Michele Sacks Lowenstein, Certified Family Law Specialist;
State Bar of California, Board of Legal Specialization

1. What does it mean to have a litigated divorce?

A litigated divorce is when the parties are unable to reach agreements between themselves with the help of their attorneys and the issues are submitted to a court to make a decision.

2. Isn’t that what the Judge is there for, to decide disputes?  Why am I better off negotiating the case than having the Judge make a decision?

Yes, the Judge is there to decide to disputes.  However, bear in mind that in order for the Judge to make a decision in your case your attorneys will have to spend a great deal of time preparing for court.  Additionally, you may very well have to wait all morning, all afternoon or even all day to have your case heard and that is very expensive for you because the attorneys will have to charge for the time they are sitting at the courthouse  waiting to be heard by the Judge.  Paying your attorney to negotiate rather than litigate is substantially less expensive; and infinitely more sensible as well.

Also, you must consider that once you step into the courtroom you are giving up all of your power to make the decisions.  The court will make decisions for you.  This extends to not only decisions involving large and small sums of money but decisions about your children.  You need to consider whether you really want to leave it to a Judge to determine who will take your child to his or her lessons or even what sporting activities your child can be enrolled in.

3. So, does this mean that I should never submit any of my issues to the Judge?

No, it does not.  You should discuss with your attorney what issues are worth taking to court and what issues are not.  However, it is customary to attempt to resolve issues outside of court before asking the Judge to hear your matter.

4. Are there any issues which should be submitted to a court?

Yes, of course, there are. These include serious issues involving the custody of children; the need for domestic violence restraining orders and often times complex property issues need to be submitted to the court.

5. I’m concerned that I won’t be able to negotiate with my spouse because he or she won’t give me what I want. 

Good faith negotiations involve both parties giving up something. You will never be able to resolve your disputes out of court if you don’t listen to the other party and try to find a solution that will work for both of you. The key to successful negotiations is that you can’t come from a place where your motive is to punish your spouse or to get even with him or her. Additionally, "position based" negotiations are not as successful as "needs based" negotiations.

What is the difference between the two? 

Position based negotiations involve taking a hard position and sticking to it.  Needs based negotiations involve looking for practical solutions that satisfy, in large part, both parties’ needs

It never hurts to try to negotiate.  Remember, you can always ratchet up a case, but it very hard to calm a case down during the heat of litigation.