When Divorce Litigation is Inevitable

15th September 2015 | By More

Wooden gavel barrister, justice conceptAlthough litigation is traditionally the most common option for divorce, around 90% of divorces are settled out of court worldwide. Good litigation ought to negotiate the best compromise that will keep your divorce case out of court. However, there are instances where going to court remains the most viable option.

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Unwillingness to Divorce

The vast majority of divorces are unilateral – one spouse wants the divorce while the other doesn’t. In the absence of a mutual agreement to part ways, a divorce is emotionally charged and adversarial by nature.

Contested Issues Remain Unresolved

Sometimes attempts to reach agreement between parties on certain important issues, such as child custody, visitation, maintenance and division of assets & debts fail, leaving no alternative but to let the courts decide.

Domestic Violence

In the case of domestic violence, one spouse feels intimidated by or fears the other spouse. This makes it physically impossible for parties to be present in the same room, let alone negotiate any agreement.

Power Imbalance

An imbalance of power exists where one spouse controls the finances for example, leaving the other spouse at a significant disadvantage when negotiating a fair share.

Substance Abuse

Abuse of any substance, be it alcohol, prescription medication, illegal drugs etc., renders a person incapable of reason and insight. Litigation might very well be the only way to reach a fair solution.

Parental Alienation & Child Abuse

Due to the very sensitive nature of parental alienation and child abuse, the legal route is best to protect the victim and ensure successful prosecution of the perpetrator. In some cases, unfounded allegations are made which need to be regarded in a very serious light and addressed accordingly.

Criminal Activities

Both the guilty and innocent parties need proper legal representation, advice and protection, for the consequences of illegal actions will have profound effects on the whole family and the security of their future.

Personality Disorders

Psychological profiles of parents and children may be obtained and admitted in court, in order to settle relevant divorce disputes, which might not be possible during mediation.

Forensic Issues

The courts have several avenues to discover information which has not been disclosed by parties in a divorce. When dishonesty prevails, trust is lost between spouses and the chances of reaching an amicable agreement is severely diminished.

Unrealistic expectations

Divorce decisions relating to the above-mentioned matters should be based on logic and the law, not emotions. A divorce attorney who does not endorse frivolous attempts to punish a spouse for wrongdoing, but focuses on meeting realistic expectations and problem solving, is the solution.

In certain situations, litigation could very well reduce potential animosity between divorcing parties, as it removes the responsibility for making really hard decisions out of their hands.

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Determine whether Litigation is Your Best Option or Not

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Written by Sinta Ebersohn (Creator of fairdivorce.co.za – Stellenbosch RSA)


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Category: Conflict Resolution, Legal, Litigation, Litigational Abuse, Practical

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