High Conflict Divorce Litigation Can Turn in to a Very Long and Expensive Legal Proceeding. Here are Some Facts to Consider.

II have been handling high conflict divorce litigation cases for over 40 years. As part of my practice, I have encouraged collaborative settlement efforts in divorce cases for decades. This is due in large part because of the emotional and financial costs and damage attendant to high conflict divorce Court litigation.

I have found that there is little information online about how grueling and expensive this high conflict divorce litigation battle can become. So, I thought it might be worthwhile to lay out what could be involved in the Court process for folks thinking about ending their marriage to consider before jumping into filing a divorce Complaint. I am not trying to scare anyone. This blog is intended to shed light on what can happen to those embarking upon the battleship “Divorce”. It hopefully can also serve as an “eye opener”and justification why it makes sense to avoid escalating to high conflict divorce litigation as one starts to consider how to dissolve their marriage.

OVERVIEW OF THE OHIO DIVORCE COURT LITIGATION PROCESS.

1. The divorce Complaint is filed typically with a request for temporary orders and restraining orders (and also with the other required forms).
2. The Defendant spouse needs to be served typically by a process server.
3. The Defendant has 14 days after receipt of the paperwork to file his/her Financial Affidavit to be considered by the Court before issuing the Temporary Order.
4. The matter is initially scheduled for a non-contested divorce hearing in the event the Defendant does not file an Answer or other pleading.
5. The Defendant has 28 days after service to file his/her Answer.
6. The non-contested hearing is vacated if an answer is filed.
7. A reply to the answer/counterclaim will be filed.

THE DISCOVERY PHASE.

8. The discovery phase often starts now. Formal or informal requests are typically exchanged requesting a plethora of financial documents and other information both sides need to evaluate. This process can take many months and take various formats. Typical requests are for information from the past 5 years. Complying with them can be very time consuming. It can also be used as a type of “battering ram”in hotly contested cases. But even in ordinary cases, expect this phase to often be a struggle to assemble bank statements, credit card statements, tax returns, pension and retirement statements. Often times broad general discovery requests are sent which may not even be focused on issues in controversy.
9. If requested, a temporary order will be issued. (This occurs about 6 weeks after the filing of the Divorce Complaint).
10. If one party feels the Temporary Order is wrong, a request for an Oral Court hearing can be filed. (That hearing would be set typically in a few weeks.)
11. An Order scheduling Court Mediation may be issued. The parties will appear in Court to try to work through contested issues in hopes of speeding up the divorce process. Depending on the situation, lawyers may or may not be present.
12. The Court will then typically schedule the first initial Court Pre-trial conference which may be with just lawyers over the phone or in Court for all parties and Counsel.
13. After the Pre-trial, counsel typically try to press the case forward depending on the facts and issues. If parenting issues are involved, often a Guardian Ad Litem is then appointed. The GAL will make a written recommendation to the Court after conducting a thorough investigation and interviewing both parents and children. This process typically takes several months and can cost around a thousand dollars per parent or more.
14. Often other pre-trial motions are filed that require responsive filings and additional Court hearings.
15. The “fact finding process” continues. Typically, supplemental discovery requests are submitted as documents are examined and more questions arise in the lawyers mind. These can be written requests or sometimes by deposition, where a party is questioned under oath in the presence of a stenographer. Many depositions can last several hours.

Steps in the High Conflict Divorce Litigation Process: THE NEGOTIATION PROCESS.

16. The lawyers typically start communications about settlement. Most often these start in writing. Depending on the workload and case complexities, this can involve many exchanges and be time consuming to reach a settlement or at least to narrow down the sticky issues.
17. The Court will typically schedule follow-up Pre-trials and often 4 way settlement conferences (which can be at Court or the lawyer’s offices, and be in person or via phone). In addition, additional Court mediations may be set.

PREPARING FOR TRIAL.

18. While each case is different depending on the issues and complexities, switching gears from trying to settle a case to preparing to litigate it, is very involved and time consuming. Care has to be given to fine tune trial strategy, prepare direct and cross examination questions of witnesses and study and organize trial exhibits. Are any expert witnesses required in the case? They need to be retained if this has not yet occurred.
19. The filing of Pre-trial Motions frequently occurs at this point regarding excluding exhibits, compelling discovery, and requests for fees and sanctions.
20. Counsel will meet with their client to help prepare them to testify at Court.
21. Subpoenas are issued for witnesses to appear at trial and often to bring relevant documents to Court.
22. Typically, there are specific deadlines to cut off discovery and to exchange lists and copies of all trial exhibits with the opposing attorney.

THE TRIAL PHASE.

23. No two trials are the same. Trials can range in length from a half day to multiple days. Regardless of the amount of preparation, there are always bumps and unexpected last minute twists and turns. These often require rush late night research and adjusting trial strategy.
24. After completing the examination of all witnesses and admitting trial exhibits, the Court may ask Counsel for a closing argument orally or to be submitted in writing. Alternatively, the Court may request written post-trial briefs be submitted on the issues in controversy.

THE WAIT FOR THE TRIAL COURT’S WRITTEN DECISION.

25. There is no way to necessarily predict this timeframe. I have received Court decisions as quickly as 10 days after trial and, believe it or not, as long as a year later. In the Courts I regularly practice, I would estimate the typical length of waiting time to receive the Court’s decision to be around two to three months after the closing argument and/or brief.

STEPS AFTER RECEIVING THE COURTS DECISION.

26. The Court in its decision will decide all submitted issues and also require one party/attorney to draft the Final Judgment and Decree of Divorce in conformity with its written decision. Accomplishing this frequently creates another round of arguments, often involving further Motions with the trial Judge. After those are sorted out, the Final Decree and Judgment of Divorce is ultimately filed.

LEGAL AVENUES AVAILABLE AFTER THE FILING OF THE FINAL JUDGMENT AND DECREE OF DIVORCE In High Conflict Divorce Litigation

27. You are wrong if you think the case is finally finished. That is not necessarily the situation, as an appeal to the higher Court is permitted. While appeals in divorce cases are not frequent they do occur, especially in high conflict cases. Either party then can file an appeal of the outcome in the trial Court to the Court of Appeals. The person appealing the decision has to purchase a transcript of the testimony. There are very strict rules laying out the timeline for the scheduling of submission of written briefs and very different procedures from the trial Court. There may also be an Oral argument before that Court renders its decision. The normal length for that Appellate Court decision is 4 to 6 months.
28. The Court of Appeals decision may affirm the trial decision totally or in part. It may reverse the decision or it may remand it back to the trial Court for further action.
29. A party still dissatisfied with the ruling from the Court of Appeals may then petition the Ohio Supreme Court to accept jurisdiction and review the case. This happens very infrequently, but it is a possibility to consider.

CONCLUSION.

It is very important to fully evaluate the emotional and financial costs of taking an attitude of “let’s just duke it out in Court”. This is especially true if you have children. If you are considering terminating your marriage, at MuesLaw we believe that there are often better approaches to first consider before resorting to high conflict divorce litigation in Ohio courts.

MuesLaw Provides Experienced, Trusted and Professional Advice if You Are Considering Ending Your Marriage.

Considering terminating your marriage? MuesLaw can assist you with your divorce or dissolution related issues. To learn more, please go to our website at www.MuesLaw.com or call us at 937 293-2141. Be sure to read more on our website about the collaborative divorce process. We can schedule an in-person conference or one by phone or Zoom. We look forward to assisting you!

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