What Is a Litigated Divorce?

by Cindy Hill
A litigated divorce can be expensive and contentious.

A litigated divorce can be expensive and contentious.

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A litigated divorce is an adversarial process, with each party represented by legal counsel and presenting their strongest arguments to the judge. The divorce ends with a judge, rather than the parties, deciding the issues of child custody and support, spousal support and property division. Divorce is governed by state laws, which vary from jurisdiction to jurisdiction, but the general litigation process is similar -- as well as costly and potentially contentious -- in every state.

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Filing and Temporary Orders

A litigated divorce begins when one of the spouses files a divorce petition in the appropriate court. This paperwork must be served on the other spouse, who may then file a response or counter-petition. Once the served party responds to the petition, the parties usually ask the court to put temporary orders in place regarding custody, visitation, support and other matters that need to be addressed while the divorce litigation is proceeding. If the spouse who was served with divorce papers ignores the petition and fails to respond within the required time period, the spouse who filed the petition may ask the court to proceed without that party.

Discovery and Trial Preparation

In preparation for trial, the parties engage in a process known as "discovery" by exchanging documents and information relative to the litigation process. This includes materials regarding finances, property ownership, expenses and factors that affect child custody. In some jurisdictions, the parties also have the opportunity to question each other and other witnesses under oath in small out-of-court sessions, called depositions, as part of the discovery process. As the discovery process continues, the attorneys work to prepare their witnesses and draft the lines of questioning for trial. Once discovery is complete, many courts will call a pre-trial conference to help narrow the trial to just the disputed issues.

Trial, Decision and Appeal

At trial, each side presents witness testimony and other evidence regarding any contested issues. Each party's attorney has a chance to cross-examine the witnesses presented by the other side and question their evidence. The parties themselves may testify and call their own factual and expert witnesses.The judge considers all the evidence presented and issues a decision on each contested point, as well as an order of divorce. The order may not become final until a waiting period has elapsed, depending on state law. Either party may appeal the judge's decision to the appropriate appellate court within a time period set by state law.


Mediation and collaborative divorce are two common alternatives to a litigated divorce process. Skilled divorce mediators guide the divorcing spouses toward reaching a mutually agreeable settlement regarding the contested issues. The mediation process tends to create a more positive environment for continued dialogue and cooperation between the spouses than does litigation, and is usually significantly less expensive. Divorce mediation may be voluntary or ordered by the divorce court. The collaborate divorce process typically goes beyond seeking resolution of the legal issues of divorce and helps foster positive outcomes in the family's financial and emotional realms as well. Collaborative divorce, as opposed to mediation, is usually entered into voluntarily by the parties.