The Divorce Process Litigation
Rik Lovett & Associates

Litigation track – Litigation is commenced when one party files a lawsuit in District Court. Typically, with domestic actions, that lawsuit will list a number of issues for the court to decide including child custody (temporary and permanent), child support (temporary and permanent), post separation support (like “ short term alimony”), alimony, attorney’s fees,  and equitable distribution (property division).

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Once a lawsuit is filed and served, the opposing party has thirty days to file a responsive pleading (“Answer and Counterclaims”) but can obtain 60 days to file a responsive pleading by filing a Motion with the Civil Clerk’s office.

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The following happens when a lawsuit is filed (some of these are required, others, not required but they are typical once litigation commences):

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• Initial disclosure documents are produced by both parties (a laundry list of documents)

• An income and expenses affidavit is drafted, reviewed, filed, and served

• An equitable distribution inventory affidavit (i.e. plotting all marital, separate, and divisible property and debt) is drafted, reviewed, filed, and served

• You must attend custody mediation orientation (where you see a film on how to be a good parent)

• Custody mediation (conducted by a Wake County mediator who is not an attorney – attorneys are not allowed to attend – if you agree with your spouse to a custody and visitation schedule at the mediation, the Wake County free non attorney mediator drafts a Parenting Agreement for you – for your attorney’s review)

• An equitable distribution Scheduling and Discovery Conference is set (the first of three required pre trial conferences for the property division issue)

• A trial on the issues of post separation support, temporary custody, temporary child support, attorney’s fees, and interim allocation is set

• We have you fill out a detailed questionnaire

• We prepare the trial notebook

• We meticulously prepare for the first hearing (which, as mentioned above, is typically re: post separation support, temp. child custody, temporary child support, attorney’s fees and an interim allocation (of marital funds)

• Discovery commences (where either party can file Requests for Production of Documents, Requests for Admissions, Interrogatories, and Requests for Entry on Land)

• Depositions are scheduled (where parties and witnesses are compelled to answer questions from the other party’s attorney before a court reporter)

• The “next trial” is set for by the family court office (usually either permanent child custody or alimony)

Our family court system calendars trials for the litigants. The attorneys used to have control over when domestic / family law issues were calendared. That is not true anymore. Once a lawsuit gets filed, it is fast and furious in the sense that your case becomes very active (with all of the items itemized in A – M above and more). The up side to litigation is that, if you can’t resolve your case in any other way, it typically needs to be resolved in some fashion and this guarantees that it will get resolved. The down side is that a Judge forces decisions (by fiat)down the party’s throats (via court order). The clients lose control over their cases (in the sense that they now have no input into the final determination of the issues being litigated), and, in court, when you appear before a Judge who has never met you before, that Judge could come down with a radical result that neither party likes or one party loves and the other party hates (i.e. a radical result could occur)… whereas if you mediate or negotiate out your domestic case, the parties, by definition have to meet somewhere (where they settle their case) where all parties can agree and they are usually resolved in an equitable manner).

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Litigation is the most expensive, time consuming way to resolve a domestic / divorce case.

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Having said that, I litigate domestic / divorce cases all the time and stand ready, willing and able to zealously advocate your cause in court if need be. There are some cases that cannot be resolved in any other way.