In this article, you will discover:
- Why the courts really want you to settle.
- When is too late to settle your divorce.
- If you should consider taking your case to trial.
Settling Your Divorce
About 95 to 98% of contested divorce cases settle at some point. It’s actually rare that a case goes through trial completion with a trial decision. From the preliminary conference filing, right up until a trial begins, settlement is a possibility at any point along the road.
I’m completing a trial now where at almost every trial date, the Judge or the Court Attorney asks, “Okay, where are we at in terms of settlement?” The courts will always encourage settlement because it takes so much time and expense for a trial. It also takes a lot of time for the court & the attorneys to review the transcripts – and for the Judge draft a decision. The Judges and Court Attorneys only have so much time to give.
We still prepare most cases as if they will go to trial, but not necessarily 100% of cases. Just because a preliminary conference is filed does not mean you don’t anticipate a case settling. Often, when a preliminary conference request is filed, the attorneys and the parties are still actively negotiating a settlement.
When we get to the preliminary conference and tell the Court Attorney Referee or Judge those negotiations are ongoing, we’ll request an extended disclosure schedule. We thus try to push the dates for completion of disclosure as far as they’re willing to go to give the case some breathing room.
If the attorneys are not able to resolve the case themselves, often a four-way settlement conference is encouraged. The parties and their attorneys sit down in a conference room for an open and frank discussion to resolve the remaining contested issues.
When To Go To Trial
It’s worth going to trial for contested divorce support or custody matters if the parties’ positions are totally opposed, and there’s no middle ground. For example, Dad wants to have overnight visitation, and Mom opposes it. If there’s no way to resolve that issue, you really have to take the case to trial.
Sometimes we can negotiate a kind of graduated schedule. If Mom’s main concern is Dad isn’t used to taking care of the child on his own, we try to resolve the case with a gradual schedule instead of going to trial. Perhaps at the three-month mark, Dad progresses to one overnight. At the six-month mark, two overnights every other week. If there are no issues at one year, then Dad progresses to a stage where he has Friday after school till Monday morning, or something along those lines.
There are a variety of ways to settle the case. However, if you reach a point where we’ve explored every possible avenue of resolving the issues, and they just can’t be settled, you have to take the case to trial.
We sometimes do a cost-benefit analysis to see if it is financially worth it to go to trial with financial issues. For example, a wife wants alimony (a/k/a maintenance) and believes she is presumptively entitled to alimony, but the husband is unwilling to give her anything. We discuss every settlement variation, but the husband is not willing to give her anything in the ballpark of what she’s asking for. The wife may see it as financially worth her while to take the case to trial because the odds are in her favor. She may spend $30 to $50 thousand at trial but will likely get $100 to $200 thousand in alimony. At that point, it’s fiscally worth it to take the issue to trial.
On the other hand, let’s say the wife’s position is she’s entitled to $100,000 in maintenance paid-out over several years (e.g., $1,500 monthly for roughly 5-6 years). And let’s say Husband’s position is he’d rather pay nothing in maintenance. Perhaps the case can be settled by reaching a middle ground – for instance, Husband pays $40,000 lump sum, the discounted amount based on Husband paying everything up-front, rather than over the course of several years. When we identify wife needs money sooner rather than later, in such instance it may be worth it for her to accept less money as a compromise for getting it all up-front.
Every case is different. You need to discuss the particulars with your attorney to see whether there are ways to cut the issues in half or get to a graduated agreement.