The difference between divorce settlement and going to trial

Divorce cases and post-divorce issues are complicated and emotional experiences. But, like all cases, the issues within your case are resolved in one of two straightforward ways: through a settlement between the parties or litigation over the issues. In a divorce, litigation nearly always involves a trial.

The big question during post-filing and pretrial discussions is always whether the parties should choose trial or settlement.

Settlement is great, when it works in your favor. But sometimes settlement requires concessions that simply should not be made. In those cases, the benefits of trial should be carefully discussed and considered.

Those without sufficient knowledge about family law believe that concessions only include issues related to giving up assets you might be entitled to, taking on responsibility for debts you are not liable for, or accepting less control over time and decisions for your children than you ought to have. But the decision to try an issue, rather than settle it also include lesser considered issues. Some of these issues are:

• Delay. Compromise of an issue helps resolve it now. Trials can take time because parties will want to conduct discovery and properly prepare their case for trial. In fact, some cases also require the use of experts on whom discovery must be sought and investigations performed; and then counter-experts retained. The process can take substantially longer than simply reaching a resolution between parties.
• Cost. Compromise of an issue helps avoid the attorney fees that trials require.
• Control. Compromise of an issue helps resolve it in a way you find acceptable.
• Disclosure. Compromise can avoid trial where your spouse plans to use information learned during the marriage against you in some way that casts you in a bad light – a light you wish to avoid.
• Continued relationship. Compromise of an issue helps avoid a trial where you might be forced to put on evidence that paints your spouse in a very poor light – knowing you will be facing this spouse when dropping of your children every week for a decade or more to come.

When considering all of these factors, among others, sometimes a compromise through settlement makes good sense. When it does not, though, it is important to be prepared to understand the issues above and move forward with trial.