A divorce trial is sometimes necessary, but it is almost always best to settle your matter as opposed to having a judge decide your fate.
Ultimately, the things that you say in court that you think are going to help you might end up hurting you. Moreover, most good judges and lawyers will tell you that you are better off having input and fashioning your own agreement rather than allowing a stranger (the judge) to decide your future based upon what he or she may hear in testimony.
In the context of a divorce, litigants are emotionally entrenched in their positions, and they may think: How could the judge possibly not see that what my spouse is doing is wrong? Don’t they see that my spouse is an idiot? Oftentimes, a person going through a divorce believes that if he or she gets into the courtroom and tells the judge their version of the story, all of a sudden the lights, bells, and whistles are going to go off, and the judge will see their side and “get it.” It rarely works that way.
Remember, the court is overburdened with all the proceedings that come before it. More likely than not, the court has heard many versions of your story over the years, only with different names attached. Furthermore, judges are people, and they all come to these cases with their own personal biases. Those bells and whistles that you expect to go off in a trial? More likely than not, you will be disappointed.
For example, you may mention how your husband is not giving you enough money to maintain the standard of living that was established during your marriage. However, you may find that the judge actually expects you to get a job and contribute to your family’s expenses.
If there is a custody issue, you might say to the judge, “My husband always lets my kids stay up late. He doesn’t make them do their homework. Then I have to do the homework with the kids.” But somehow while stating this it is revealed that you mention your spouse’s shortcomings in front of your children. This will make the hairs on the back of a judge’s neck stand up—the fact that you’re in any way saying or doing something to make your children perceive your spouse in a negative way. Thus, something that you think might reflect negatively on your spouse, could end up reflecting negatively on you.
You may also not be prepared for what your spouse is going to say in opposition. When all the text messages and emails that you and your spouse have sent back and forth to each other come into evidence, they may not read as you remember them.
A trial is also costly. If there are no issues of custody involved, it comes down to making a business decision—how much money are you willing to spend on counsel fees and expert fees? If you are going to spend $20,000 to potentially get $200,000, that could be a worthwhile investment. However, if you are going to spend $20,000 in the hope of getting $30,000 (or less), it would probably be wise to re-think your strategy.
Most importantly, there is never a guaranteed result at trial. Even if you know what the law says, and your attorney knows what the law says, there is no guarantee as to what the judge will ultimately decide. The law can be interpreted differently, by different judges. These cases are very fact-sensitive, and one judge may view the same set of facts differently from another judge.
Moreover, if you and your spouse go to trial, it will only serve to increase the hostility between you. If you have children together, you are still going to have to work together going forward. It will be much harder to establish or to re-establish a cordial and civilized relationship if you have hashed out all of your dirty laundry in court. If you settle, at least you have a starting point that you’ve both agreed upon, even if it’s not the ideal.
It’s frequently said that a good settlement is one in which both parties are somewhat dissatisfied. But following a court trial, it is usually both parties who are unhappy…and a lot poorer.
Contact us with questions or comments today.
By Debra L. Rubin Esq.