While most Massachusetts divorcing partners strive to make the divorce process as quick andpainless as possible, sometimes it’s just not that easy. What do you do when things aren’t going your way-your spouse wants more than his or her fair share of the assets, or proposed custody arrangements aren’t agreeable to you, for example? Should you roll the dice and go to trial, letting a judge decide the issues? Or what if you just can’t get your spouse to the negotiating table? Is continued litigation a good option?
Here are some considerations as you determine whether to settle or go to trial:
Time. A trial can take a year or more-that’s months longer than it takes to accomplish a typical settlement. Your trial will be scheduled according to the court’s calendar, which may mean months of waiting. You’re likely to spend more time with your attorney, too, preparing for each trial appearance day. Then there are the appearances themselves, for which you will likely have to take time off of work.
Settling your case without engaging in trial is likely to enable you to finalize your divorce sooner and get on with your life. There are rare cases, however, when this doesn’t hold true. If you or your spouse absolutely cannot find your way to making concessions to reach a settlement that is agreeable to both sides, then you could theoretically spend more time in fruitless negotiations than you would have spent preparing for and conducting a trial. If you know you’re going to end up at trial anyway based on the difficulty and lack of success in trying to resolve issues that arose while the divorce matter is pending, it may make sense to avoid protracted settlement negotiations on final issues before getting there
Money. Of course, time has a financial cost as well. You pay for the time you and your lawyer spend preparing for trial. You pay for taking up time and space in the courtroom and for the presiding judge’s time. Overall, court costs, attorney fees and other expenses can multiply quickly in a trial setting. While costs vary widely depending on the state in which you live and your attorney’s fee structure, you can expect a total price tag in the high five digits for a divorce trial. The cost for executing a settlement agreement before trial is generally much lower.
Stress. A drawn-out divorce process can also take a toll on your, and your children’s, emotional health. It’s stressful being at trial, and the time and energy you pour into the effort can spill over into your home and work life. When lawyers need information for the court, they often need it immediately, which means you have to drop everything to supply it, whether you are dropping your kids off at school or working. This constant “on call” status gets old fast, and it’s just a part of the overall stress a divorce trial can impose on you and your family.
The stress will affect your relationship with your spouse as well, making a collaborative meeting of the minds in your divorce much more difficult to achieve. Taking your partner to trial is not likely to improve his or her attitude toward you, or to bolster your post-judgment and, possibly, co-parenting relationship.
Outcomes. Here’s where trial may become worth the price. If you weren’t getting what you wanted through settlement negotiations, a trial gives you the chance to petition for more-a greater share of the assets perhaps or more time and decision-making authority with the children. There’s no guarantee of success, but if you and your lawyer feel you have a strong case, then you may decide it’s worth going to trial.
We will caution that the idea of “having your day in court” simply to be heard, to tell your side of the divorce story on the witness stand, is not a good reason to go to trial. In general, courts will not be persuaded by your grievances with your spouse. They want the pragmatic and law-based rationale behind your assertion that you deserve a greater percentage of assets or more time and involvement with your children. Consult with your attorney as to the strength of your case before rejecting reasonable settlement proposals in pursuit of what you think is fair.
Remember that if you decide to go to trial, you are handing decision-making authority over to the court; you must be willing to accept the outcome, or be willing to spend additional time and legal fees on a costly appeals process. Most divorcing couples prefer to work things out between themselves because they feel they have a better chance through back-and-forth negotiation. However, every couple is different, and getting a judge to issue a decision after a trial is certainly an option available to you. Talk it over with your attorney to get his or her perspective into what may be in your best interest.
Should you be in the midst of a divorce or contemplating divorce, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.