Settlement or Trial: What is Best?

By Jay A. Frank
Updated: July 28, 2014
Divorce Settlement/Preparation

In most situations, it's best to settle your divorce case rather than to go to trial. My comments on the benefits of settlement and the problems of trial are based on forty years of practice as a matrimonial lawyer seeing the best and the worst of things.

The benefits of settlement fall mainly into three categories. First, settlement is a process which results from agreements reached by you and your spouse. Consequently, since the agreement was made by you and your spouse, there is a good chance that both of you will live up to it. This reduces problems down the line and avoids having to go back to court to resolve differences. In short, you and your spouse are in control of your lives.

At trial, the judge is in control of your lives. But, he doesn't know you very well, and maybe not at all. His decision is based strictly on the evidence, the effectiveness of your lawyer, and what he thinks is fair. Unlike settlement, neither you nor your spouse have a hand in the final decision.

The second advantage to settlement is that the process is generally less expensive than going to trial. Lawyer's fees are considerably less and there is no need to hire experts such as real estate appraisers and accountants. On the other hand, at trial, you are paying your lawyer to get ready for trial and to be in court for trial. You may also need the experts to testify. Costs can mount up.

Third, settlement avoids the turmoil in your day-to-day life which is typically a result of going to trial. You can avoid spending time at the lawyer's office getting ready for trial, and you can avoid taking time off work to attend court. Trials can be stressful and upsetting; you can avoid this too.

While settlement is preferable for all of the reasons described above, not all cases can be settled. Your spouse may be unreasonable to the point where he refuses to make a fair settlement. His lawyer may be unreasonable. In these situations there may not be any alternative to trial.

Going to trial can be difficult and time consuming. However, there are things that you can do, and have your lawyer do, to streamline the process:

  • You can help your lawyer prepare for trial by reviewing and organizing financial records such as credit card and bank statements.
  • You can help your lawyer by organizing trial exhibits and preparing the exhibit books for the judge and opposing counsel.
  • Your lawyer can most likely agree on at least some points with opposing counsel. There shouldn't be any dispute in identifying many of the assets and their value (accounts, automobiles, retirement plans, etc.). This reduces trial time. Also, there should be efforts to resolve issues regarding the children.
  • The lawyers should be able to agree on the most cost effective way to present testimony and other evidence. Again, this will save trial time and reduce costs.

Try your best to settle. Recognize that you may have to give up more than you want. If you find yourself going to trial, be sure that the issues you are fighting about are worth it. Approach the case on a cost-benefit basis, rather than emotionally.

Jay A. Frank is a senior divorce practitioner with Aronberg Goldgehn Davis & Garmisa in Chicago. He has been selected as one of the top family-law attorneys in Illinois. With more than 35 years of experience, he focuses his practice on all aspects of Illinois family law. He can be reached at (312) 828-9600. View his Divorce Magazine profile

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June 11, 2013
Categories:  Legal Issues

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