Traditionally there has been a great difference between the handling of a civil litigation matter and a divorce.
Civil litigation practice is governed by the Arizona Rules of Civil Procedure. The Rules of Evidence are strictly observed. And Motions to dismiss, Motions for Summary Judgment or Partial Summary Judgment are commonly used to advance the litigation which can often take over a year to conclude.
On the other hand, a divorce often moves more quickly. Divorces proceed under the Rules of Family Law procedure. Evidentiary standards are usually relaxed. Motion practice is limited. The Rules of Family Law procedure are designed to conclude a divorce as efficiently and quickly as possible to minimize the collateral damage suffered by all family members.
But some divorces are hotly contested and cannot be concluded quickly. There may be significant property issues or parental fitness issues. An experienced Family Law Attorney can usually spot these cases quickly.
For these high stress cases, adopting civil litigation tactics and procedures can often be helpful to bring them to a successful conclusion. A few of these are:
- Use of a non-spoliation of evidence letter at the inception of the case demanding that all discoverable materials be preserved. This can be helpful where a party removes social media information and photographs or otherwise conceals or destroys evidence.
- Extensive discovery including non-uniform interrogatories, requests for production, requests for admissions and depositions of critical witnesses. These are essential in a civil litigation case but are less common in divorce proceedings. Seriously contested divorces require the use of the same procedures to elicit all the facts and ferret out all documents. Often, this homework will make a dispositive motion such as a motion for partial summary judgment appropriate.
- Motions for partial summary judgment. In a proper case, a motion for partial summary judgment can be used to obtain the court’s decision concerning one or more issues in the case prior to trial. This has the advantage of reducing the issues that must be tried and shortening any eventual trial. It has the additional advantage of encouraging settlement. A loss on such a Motion can put the opposing party at a disadvantage and give him or her an inkling of how the court might rule on the remainder of the case should it go to trial.
Use of these as well as other civil litigation techniques are essential to attack the case of the opposing party and to identify vulnerabilities that can be exploited to produce a favorable settlement or successful outcome at trial.
If you need help with divorce or another family legal matter, contact one of our experienced family law attorneys to assist you.
Use the form below or call 602-277-4441 today to schedule a free consultation.
Platt and Westby, P.C. has offices in Phoenix and Gilbert, Arizona.