All family law issues can be decided by agreement between the parties, in private proceedings such as arbitration, or in court. Whether particular issues in a given case should be decided by a judge or through other means is a matter best determined with the advice of a competent matrimonial lawyer. Litigation is expensive as well as physically and emotionally demanding. The outcome of contested matters cannot be predicted with certainty. Most family law cases nevertheless result in court action of some kind. Not all differences between spouses can be resolved without court intervention. Even those that might otherwise be privately settled sometimes expose a gulf between the parties that is simply too wide to bridge through negotiations.
Litigation must be commenced if the parties in a family dispute cannot reach agreement, if there is no way to protect one spouse from the other, or if there is no way to protect children from one of the spouses. Courts will act swiftly to guard the welfare of spouses and children and to protect their physical and financial interests. In extreme circumstances, judges may grant emergency temporary relief even before scheduling a hearing at which the opposing party is present. Litigation is obviously required if a spouse is physically abusive, refuses to provide necessary financial support, refuses to disclose financial information, conceals assets, or otherwise attempts to subvert conscientious efforts to resolve family disputes.
The filing of a domestic relations lawsuit does not necessarily mean that a case will not later be settled out of court. Parties are routinely encouraged by judges to resolve their differences. In matrimonial cases, most court orders are entered largely because the parties cannot or will not settle the matter themselves.
A number of separate trials and hearings may be required to resolve a domestic relations lawsuit. Each of the issues discussed separately above—divorce, alimony, child custody, child support, and equitable distribution—may be tried at separate times before different judges in different courts. If interim relief such as temporary spousal support or child support or temporary custody must be sought, separate trials or contested hearings will usually be required to resolve each of these issues. Compliance with time constraints built into the Rules of Civil Procedure, the necessity of conducting formal discovery, and crowded court dockets make scheduling these hearings difficult under the best of circumstances and usually mean that contested family law cases move ahead at a slow and sometimes frustrating pace.
ALTERNATIVES FOR THE RESOLUTION OF FAMILY LAW ISSUES
Virtually all family law issues can be resolved by agreement if the parties are willing, or by private means such as mediation or arbitration that do not involve courtroom proceedings. Each of these alternatives has advantages and disadvantages, which vary according to individual circumstances. State law and local rules sometimes require parties to engage in mediation before going to court, even when the matter is set to be heard by a judge sometime later if an agreement cannot be reached.
The matter of divorce must be handled in open court in all cases, however. A judgment of absolute divorce is a public document whether or not all other issues relating to the dissolution of the marriage have been resolved by agreement or in private proceedings. It is not necessary in this state for either or both parties to be present in court when a degree of absolute divorce is granted.
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