Why Settling Your Divorce Out of Court May Be Best

When someone has wronged you, it’s natural to want your day in court. Most people haven’t spent a lot of time in court, but we have all seen enough courtroom dramas to appreciate the value of a public vindication by a respected judge proclaiming who is right, and who is wrong. And it’s almost certain that if you imagine this scene unfolding in your divorce, that proclamation is in your favor.

Unfortunately, that is rarely how it happens in real life—in court cases in general, and divorce trials in particular. That’s not to say that a divorce trial is never necessary or a good idea. But for most people and their children, settling a divorce out of court makes a lot more sense. In this blog post, we will discuss a few of the many reasons to settle your divorce.

Can You Settle a Divorce Out of Court?

Not only can a divorce be settled out of court, but in the vast majority of cases, it is. Some estimates say that as many as 98% of divorce cases settle out of court, but even more conservative estimates place that figure over 90%. If you talk to the divorced people you know, chances are that almost all of them reached a settlement, even if it was on the steps of the courthouse on the day of a scheduled trial. But the truth is that most divorces settle earlier in the process. Some even settle before the papers to start the divorce process are filed (more on that below). Here are four reasons settling your divorce out of court is a good idea.

Settling Your Divorce is Less Costly Than a Trial

“Victory at any cost” in a divorce always comes with a cost, and rarely with a victory. Preparing for a trial is expensive. The discovery process, in which attorneys request and exchange documents and other evidence for trial, takes many hours, as does developing a trial strategy and interviewing potential witnesses, not to mention the trial itself. Your attorney will bill you for every one of those hours, per your retainer agreement.

The average cost of a divorce that goes to trial is over $35,000, and it is not uncommon in a complex or highly-contested case for legal fees to exceed $60,000. And almost always, you are responsible for paying your own lawyer. A divorce that settles usually costs much less, and the earlier in the process you are able to settle, the less costly your divorce will be.

We’ve seen couples spend thousands of dollars in legal fees to fight over marital property worth a few hundred dollars at most. Fighting is expensive, so avoid it unless it’s really necessary.

Settling a Divorce is Less Stressful for You (and Your Kids)

Courtroom thrillers on TV are exciting, but when the courtroom drama puts you under the microscope, it’s a lot less thrilling. Having your life quite literally on trial is grueling. And the conflict that swirls around you when you are preparing for trial creates unrelenting stress for weeks or months leading up to your divorce.

And you are not the only one affected by that stress. Your children feel it, too. They may develop anxiety, become clingy or begin acting out, struggle in school, or even manifest physical symptoms. There’s no need to feel guilty if you must go to trial in your divorce, but you should definitely think twice about putting your kids through an extended, hostile divorce if you can avoid it. That’s especially true since you may need to share child custody with your ex-spouse afterward. Preserving a cordial relationship (or as cordial as possible) with your ex is better for your children, and it’s harder to do that after a bitter trial.

Settling a Divorce Gives You More Control Over the Process and the Outcome

One of the biggest myths about “having your day in court” is that the judge will hear every detail about your marriage and make a fair determination based on all the facts. The reality is that you and your spouse know much more about your family than a judge ever could, and you are in a much better position to achieve resolutions that will work for your unique needs.

Reaching a settlement agreement with the help of your attorney and perhaps other professionals gives you the flexibility to come up with creative solutions that a court might not impose, but which you are free to agree to. You are more likely to be satisfied with a settlement that you had a hand in creating. When you’re more satisfied, you are more likely to abide by the agreement, and less likely to need to return to court.

Remember when we said it’s possible to settle your divorce before you even file your divorce papers? It’s true. If you and your spouse know you are headed toward divorce and want to keep it amicable, you can discuss and agree on the terms at any time–even before filing. That is an uncontested divorce.

Settling Your Divorce Out of Court Helps You Focus on the Future

Using a divorce trial to try to get back at your spouse for their misdeeds rarely works. As a wise person once said, “Anger is a punishment we give ourselves when someone else does wrong.” That is not to say you have to be happy about your spouse’s misconduct. But rather than dwelling on that (which you cannot change), it’s more productive to focus on your future, which is within your control.

A divorce settlement addresses the resources you need to build the future you want, rather than exact punishment on your spouse. It lets you move toward what you want, rather ruminating on wrongs that are in the past.

If you believe that you and your spouse are not able to sit down and negotiate a settlement on your own, the good news is that help is available. You can negotiate with the help of your attorneys, using them as intermediaries if necessary. Many couples are also able to reach settlement through alternative dispute resolution (ADR) means such as mediation or Collaborative divorce.

While settling a divorce is usually the best option, there are times when it may not be, such as when domestic violence, mental health issues or a serious power imbalance means you and your spouse cannot negotiate on equal footing. A trial may also be necessary if your spouse refuses to negotiate honestly and fairly.

To learn more about how to settle a divorce out of court, or learn about your options for negotiating a settlement, please contact Brinkley Law Firm to schedule a consultation.