The short answer is: when the offer to settle is obviously unfair and you would clearly get a better result from the judge.
In the negotiation or mediation process, in order to come to a resolution, each party must give a little – whether it’s the value of the community business or assets or the parenting plan for sharing the children. When we say that the offer is “unfair,” it’s when one party says, “That’s the offer. Take it or you’ll get nothing,” or “I want physical custody, or you’ll never see the children again,” or “I don’t want my business appraised. Take what I’m offering, or I’ll close it down.”
That’s coercion and not fair. In litigation, the judge will determine the value of the business, and whichever party keeps it must buy out the other party. The judge must make a decision about child-sharing that’s in the best interests of the children. All assets and debts will be divided equally.
It is best to negotiate and settle the issues, but when an offer on the table is so much less than the law entitles you to, it is a wise decision to go to court.
The other main reason to litigate is when one of the spouses is intimidated and afraid of the other spouse. The mediation process will not work in such a case; he or she needs the protection of the court.
Georgine Brave is dedicated to assisting her clients through the family-law process with understanding and support. Brave, Weber & Mack, offers family lawyers with knowledge, experience, and strong advocacy skills to support clients through any divorce issues.