Many people think that litigation is too aggressive and some even say you should only use it as a last resort.
That might be true, and negotiating an agreement certainly has many advantages, but it is not always possible.
Some people are unwilling to negotiate, or they take provocative steps, with money and children, which leave the other party with no option but to go to court.
Trying to find creative solutions can take many months of emotions and thousands of dollars spent on legal fees without advancing your case.
Ultimately, there are only two ways a dispute can be resolved;
- by agreement of the parties or
- by Court intervention.
Going to court does not mean you are closing the door on negotiation and reaching an agreement.
That option is always available, and it is encouraged and requires before initiating applying to the court and throughout the entire process.
Most people do not know that of 100 cases that start in the Family Court, only approximately 7 are ultimately determined by a Judge.
The other 93 settles.
Litigation the pros cons
Litigation provides urgent relief
By initiating application at court, you are actually telling your former spouse that you mean business.
If there is a risk that the property pool may be depleted, or there is a risk that a child will not be returned if he/she travels overseas, immediate action may be needed.
It is binding
The outcome of the litigation will provide you with a legally enforceable document.
Non-compliance with the Court order will have serious consequences to whoever does not comply.
COMMON MISTAKES TO AVOID
Family law matters can generally be divided between issues relating to property and those relating to parenting.
In both areas, people make mistakes that can easily be avoided.
Let’s consider the following:
- Don’t involve the children unnecessarily
- Avoid venting your frustrations on social media
- Non - disclosure of financial information in property and financial matters is not only against the law; it is also a sure way to shatter your credibility before the court.
DISADVANTAGES OF LITIGATION
As I have said before,
litigation might be unavoidable and necessary to reach an outcome.
However, there are certain pitfalls that you must be aware of, such as
THE COST IS SIGNIFICANT
Any form of litigation is expensive. Don't dive cold when you don't have to.
- You will need to have a realistic set of goals.
- Discuss and ask your lawyer to prepare an action plan.
- Always keep in mind the commercial sense in your case.
- You must be in control of your matter no your lawyer
IT IS A DRAWN-OUT PROCESS
The courts have limited resources and it can take up two years from filing your Initiating Application until you obtain a final determination by the court.
THE OUTCOME IS NEVER CERTAIN
There are no mathematical formulas for working out what the outcome will be. Judges have an inherent discretion when considering your matter and deciding on final Orders and directions. and, because of this, it is impossible for anyone to predict with absolute accuracy what the outcome of such proceedings will be.
LITIGATION IS STRESSFUL
You need to consider the potential pressure and the emotional toll litigation can have on you, as well as the fact that litigation can be destructive for any post-separation relationship with your ex-partner.
This could have a significant impact on parenting matters.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.