Divorce is rarely straightforward, and one of the most significant decisions you’ll face is whether to settle your case or take it to trial. While most divorces are resolved through negotiation or mediation, some situations warrant a trial. This decision shouldn’t be made lightly, as it can impact your financial future, emotional well-being, and family relationships for years to come.
Pros of Taking Your Divorce to Trial
1. Full Court Review of Disputed Issues
When settlement negotiations fail, a trial provides a formal process where a judge will make final determinations on contested issues. This can be particularly valuable when:
- Your spouse is being unreasonable in negotiations
- There are complex assets that need proper valuation
- You believe your spouse is hiding assets
- There are fundamental disagreements about child custody arrangements
2. Access to Formal Discovery
The trial process provides access to formal discovery procedures, which can compel your spouse to disclose financial information and other relevant evidence. This includes:
- Depositions under oath
- Mandatory financial disclosures
- Document production
- Expert witness testimony
3. Impartial Third-Party Decision Making
A judge offers an objective perspective and will make decisions based on legal standards rather than emotions. This can be valuable when:
- Communication has broken down completely between spouses
- There is a significant power imbalance in the relationship
- One spouse refuses to negotiate in good faith
- Emotions are clouding judgment on both sides
4. Setting Legal Precedent
In some cases, particularly those involving novel legal questions, taking your case to trial may help establish legal precedent that could benefit others in similar situations.
5. Potential for More Favorable Outcome
If settlement offers have been consistently unfair and you have strong evidence supporting your position, a trial might result in a more favorable outcome than accepting an inadequate settlement.
Cons of Taking Your Divorce to Trial
1. Significantly Higher Costs
Trials are expensive — often dramatically more so than settlements:
- Attorney fees increase substantially (preparation, court appearances, etc.)
- Expert witness fees (financial experts, custody evaluators, etc.)
- Court costs and filing fees
- Time away from work
- Potential for appeals, which further increases costs
2. Loss of Control Over Outcome
When you go to trial, you turn over decision-making power to the judge. That means:
- The judge may rule against you on key issues
- The outcome might be worse than what was offered in settlement
- The court’s decision may not align with either spouse’s wishes
- Limited flexibility in crafting creative solutions
3. Increased Emotional Toll
Trials can be emotionally devastating for all involved:
- Public airing of private matters
- Adversarial process heightens conflict
- Potential for testimony that damages relationships
- Stress and anxiety during the waiting period
- Emotional impact on children who may be aware of proceedings
4. Lengthy Timeline
The trial process can significantly delay your divorce:
- Court scheduling delays (often months or even years)
- Pre-trial motions and hearings
- Discovery process is time-consuming
- Post-trial motions and potential appeals
- Prolonged uncertainty about your future
5. Damage to Co-Parenting Relationship
If children are involved, the adversarial nature of a trial can severely damage the co-parenting relationship:
- Increased hostility between parents
- Children may be interviewed or required to testify
- Custody evaluations can be intrusive and stressful
- Long-term impact on family dynamics
When Trial Might Be Necessary
Despite the drawbacks, trial may be your best option when:
- Settlement offers are grossly one-sided or far less favorable than the likely outcome at trial
- No settlement offers are on the table
- Your spouse has reneged on previously reached agreements
- Your settlement offers have gone unanswered or ignored
- One spouse is unwilling or unable to negotiate in good faith
- Domestic violence or abuse is involved
- Your spouse is hiding assets or income
- Complex business valuation disputes exist
- Untreated or poorly managed mental health issues are impacting parenting or decision-making
- Untreated or poorly managed substance abuse issues are present that affect safety or parenting
Alternatives to Consider Before Trial
Before committing to trial, consider these alternatives:
- Mediation with a retired family court judge
- Settlement conferences with attorneys present
- Arbitration (think of it as a sort of private trial), which offers a binding decision outside the court system, with a retired family court judge, combining judicial background and knowledge with privacy and flexible scheduling
- Neutral evaluation of specific disputed issues
- Limited-scope trials on only the outstanding disputes
Next Steps
Taking your divorce to trial is a significant decision that should be made carefully, ideally with guidance from Freed Marcroft’s experienced family law attorney who can evaluate the specific circumstances of your case. While trials provide a forum for resolving seemingly intractable disputes, they come with substantial financial and emotional costs. In many cases, making one last good-faith effort at settlement (even late in the process) can save tremendous resources and preserve relationships that will be important in the future, especially when children are involved.
Remember that the best decision will depend on your unique situation, the legal issues involved, and your priorities for the future. Whatever path you choose, focus on maintaining your long-term well-being and that of your family.