To Settle or to Litigate? How the Divorcing Woman Should Decide

March 24, 2015

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With help from movies and television, the stereotypical, high-drama divorce trial has become firmly ensconced in popular culture. We can all picture the angry, vindictive spouses, the animated legal teams, and the robed, sage judge. But if you’re contemplating divorce, and that’s the only scenario that comes to mind, you might want to think again. Believe it or not, the overwhelming majority of divorce cases — estimates say 95% — are settled outside of the courtroom.

In very general terms, the divorce process usually goes like this: Each spouse has a divorce attorney, who collaborates with divorce financial advisors and other specialists, such as forensic accountants, valuation experts, real estate appraisersvocational consultants, etc., if warranted by the complexity and the amount of assets  of the case. Then, each working for their own client’s best interest and according to the laws of the state in which the divorce was filed, the attorneys try to negotiate a settlement agreement that both parties can live with. How long this takes depends on many factors, including the preparedness of both parties, their willingness to work toward a solution, and the complexity of the issues to be decided. When complete, the agreement is signed by both parties, filed with the court, and becomes legally binding.

You might now be wondering, if there’s no real need for a trial, why does anyone go through it? Well, sometimes settlement negotiations just don’t come to fruition. In some cases, the negotiations drag on, with neither side offering up any kind of compromise to move the process along. If that happens to you and you catch yourself thinking, “There must be a better way,” it may be time to take your case to court.

But before you make that step, here are a few key points for you to consider:

A trial can be incredibly stressful.
Especially if there are children involved, think long and hard about whether your family should undergo the emotional grind of a public trial. It may be more than you’re willing to go through. If your divorce is likely to garner media coverage, that’s another angle to the unpleasantness you’d have to endure.

A trial can be incredibly expensive.
You could easily spend more on a trial than you would have lost by agreeing to your husband’s terms in the first place… even the terms of his worst offer. What’s more, you could come out of a trial with a deal that’s worse than what your husband would have been willing to agree to in negotiations.

This doesn’t mean you should agree to something unfair just to avoid going to trial. But, make sure you know the risks and are ready to accept them. If you’ve got plenty of money set aside to fund the effort, and you can afford the time a trial might take, and the possible outcomes are worth going through it all to achieve, than litigation might be the right strategy.

A trial might not be the best way to solve your problem.
Identify the root of the impasse. What are you and your husband arguing about — and is the question best suited to continued negotiations, or better addressed by going directly to court?

For example, if you and your husband are hung up on the amount of spousal support, the terms of shared child custody, or the fair split of a stock portfolio, you might want to consider adding a different personality to your legal team, or shaking things up some other way. Sometimes a fresh perspective can help the process along and get it moving in the right direction.

However, if you’re stuck because one of you is holding an absolute or extreme position — that there should be no spousal support at all, for example, or that one of you wants sole custody with no visitation rights to be accorded to the other parent – then you may, in fact, do better in court. This is especially true when dealing with a husband who is narcissistic, controlling, manipulative, and perhaps, even abusive.

Ask yourself whether you’re even in a position to negotiate, or whether you and your husband disagree on the very premise of the negotiations. And, ask yourself whether the points on which you’re so far apart are worth fighting over.

A trial gives control of your future to a judge who doesn’t know you.
If you go to trial, you have no say about which judge hears your case, and no idea what his/her prejudices and biases might be, or whether those would work for or against you.

Some stay-at-home-moms feel relieved at first, if their case is assigned a female judge. They could be in for a rude awakening when they realize the judge’s bias is actually against them. Think about it. It’s likely that a female judge is working very hard to meet the demands of both parenthood and her profession. She might not be the most empathetic audience for your arguments about why you can’t go back to work, especially if your kids are older.

Bottom line: don’t expect sympathy from the bench.

A trial could still be best for your case.
Even with all those points taken, there are situations in which you’d have no choice but to go to trial, and situations in which that’s truly the best option. If your husband is abusive and/or a narcissist, if he is delusional, or always and completely unwilling to compromise, you might fare better putting your case before a judge. And if you know him to be hiding income or assets, a trial might be the best setting for calling him out on it.

As always, I urge you to Think Financially, Not Emotionally®.

Sure, there may come a time when you’re tempted to shout “I’ll see you in court!” across the negotiating table. But, it’s better to restrain yourself. Heading to trial out of fury or frustration is a recipe for financial disaster.

Your best bet is to set your emotions aside, and examine the numbers. Ask your attorney for her best estimate of the cost of a trial. Increase that by a third or more. Then, list the dollar value of the assets or issues over which you and your husband seemed to have reached an insurmountable impasse. Compare the numbers. Where do you stand to benefit most — in court, or out?

Remember that ultimately, your goal is to reach a settlement that best ensures your stable financial future. Let that vision — and nothing else — guide your thinking.

Jeffrey Landers is a member of the DailyWorth Connect program. Read more about the program here.