The concept of divorce will be familiar to most if not all parties but, even though you’re familiar with it, you may not necessarily understand how the divorce process works. Without learning more about the process, you won’t be able to make an informed decision about whether to litigate in court or settle your divorce without court.
Divorces will be different in each circumstance, so you can’t necessarily go off experiences from other people. While some cases can be relatively simple, other couples don’t have it so easy.
Depending on the extent of the divorce and how complicated it is, it can sometimes last months or years, with plenty of legal professionals being involved in the process.
Your divorce attorney isn’t the only one that’s included in some cases, there are also real estate experts, accountants, consultants, etc. who will specialize for each part of the divorce. There’s all this before a settlement is negotiated and how long this takes is dependent on how willing both parties are to negotiate and what they want from the divorce.
We’ve yet to consider the matter of court. Would a trial be possible? Luckily, you may not have to worry about that as it’s estimated that around 90-95% of divorces rarely get to the point of court proceedings. However, if there comes a point where neither side is agreeing on a settlement and there have been several rounds of negotiations, a court could be a possible option.
Should you litigate or settle your divorce? Four Questions to Help You Decide.
Ask yourself the following four questions:
1. What divorce issues do you and your partner disagree on?
If your disagreements revolve around spousal support and child custody, these can easily be resolved through expert negotiations.
However, if disagreements are more complicated than this and there’s disagreement around who should have sole custody without the other spouse visiting or whether spousal support is required these may be issues worth sorting out in the court.
Essentially, you need to work out whether the discussions could eventually come to a conclusion or whether there’s absolutely no room for negotiation whatsoever. If the negotiations are completely off the mark with what you’re arguing for, a judge may be an option for you. It’s worth noting that litigation can be expensive, especially when you have to consider that advice and fees need to be paid for litigation solicitors as well as putting in a claim in the first place. So you need to be sure that the points you’re arguing for are worth the time and effort.
2. Will the time and expense of the trial be worth it?
There’s a possibility that you would lose out more time going to court and sending the divorce to trial than by agreeing to your partner’s terms. Additionally, there’s a chance that what you come out with after court may not be the as attractive compared to what your partner was initially offering.
We’re not saying that you should settle just for the sake of it, but gain an understanding of where you stand. If you feel the time and expense is worth going to trial with a strong chance of getting the right decision for you, litigation would definitely be an option for you, but if there’s any doubt you should consider settling.
3. The stress of a trial will likely affect your family – can you go through with it?
Trials can bring extreme emotional stress and, particularly if you have children. Consider whether you and the people you love should go through the stress divorce court as it’s likely to be a major emotional rollercoaster.
4. The judge won’t know you – will that be risky for your case?
Most judges are completely impartial when it comes to making a decision over divorce proceedings. So, what they hear in court will be all the information they have to go off. Whatever conclusion that the judge comes to will be the final decision unless you have a reason to file an appeal.
It’s unfortunate to think that your divorce has got to this stage but if you have no choice, you may need to go to trial rather than settle your divorce. If there’s a chance that your husband is abusive or stubborn, or that there is something they’re hiding then going to court in front of a judge may be the best option for you.
Jamie Costello works as a Junior Legal Assistant in the U.K. who uses his knowledge to provide insightful articles on related topics in the legal sector. To develop his knowledge and make progress in the sector, he has recently been researching divorce and other family law matters.