When do I give up divorce negotiation and go to court?

Posted on Feb 7, 2020 by Katie Carter

It’s the million dollar question: “When do I give up negotiation and go to court?” At some point in many cases, there’s a time where it seems like further negotiations are pointless. When you’re at an impasse, and you just want your divorce finalized already, it’s easy to wonder whether going to court wouldn’t just be easier.

In many cases, the answer is simple. You go to court when the financial advantage to doing so will likely outweigh the cost of the litigation. Litigation is often expensive (not to mention time consuming), so you want to know that what you’re doing is likely to have at least a moderate payoff. It can be hard to guesstimate in advance, but a qualified family law attorney can help you weigh the advantages and disadvantages to come up with a plan. While we can never guarantee a win (how can we, when it’s ultimately up to a judge to decide what happens?), we can often at least give you a little more clarity on your overall likelihood of success. (And, sometimes, the answer is “Well, it could go either way.”)

We often see a lot of cases come up in particular areas of law. Probably the two most common are spousal support and child custody and visitation. There are often also complicated issues where business valuations and other complex equitable distribution issues are presented, but those are less common.

When you’re trying to make the decision whether to continue to negotiate or whether to go to court, you have some options.

Probably, to take advantage of most of them, you’ll need to file for divorce. I’ll go into some detail explaining.

Filing for divorce puts your case on the contested track, especially if you haven’t been separated for a year yet and you have to allege fault based grounds in order to get you case into court. But you should also remember that, at any point, a case can switch from contested to uncontested – and all we have to do is to negotiate an agreement. So, even if you’ve made the decision to file in order to take advantage of some of the potential benefits associated with having a case in the court system.

Advantages of filing for divorce:

1. Your case is already on the court’s radar. Whether negotiations are successful later on or whether they ultimately fail, having already filed for divorce (and served your soon to be ex husband with divorce paperwork) means that you’re a bit ahead of the game. You have the full authority of the court to use the court to move your case forward – by setting trial dates, etc. When you negotiate, you’re lacking in “teeth”; there’s nothing to force your husband to respond or participate meaningfully like there is when you’re already in court.

2. You can conduct discovery. At the end of the day, all court cases are about the evidence and what we can prove. Yesterday, I was talking to our receptionist who was telling me that our client should win a recent trial that one of our attorneys had in Chesapeake Circuit Court. “He got someone else pregnant!” she told me, indignantly. “He should pay her spousal support!” While her support for our client is super endearing, it was also a little misplaced. Spousal support isn’t designed to be punitive; just because the husband in this case fathered a child with someone else doesn’t mean he’ll have to pay. It’s a question of incomes – and, in the case I’m talking about, income was hard to prove because he owned his own business – and what we can prove to the judge using actual evidence.

To the extent that we can do discovery before trial, we can find out what evidence we actually have, and that can give us a better idea of whether your case will succeed on the merits – or not. And that information alone can help us decide whether it’s worthwhile to move forward with the trial or whether we’d be better off to work a little harder to reach an agreement. (Of course, keep in mind that if we have the information, so too will the other side – so your husband and his attorney can also use this information to make decisions!)

3. You can get temporary custody and support in place.Often, when we file for divorce, we have a pendente lite hearing fairly early on. At pendente lite, the judge will set temporary child and spousal support, as well as create a temporary custody and visitation order.
Its not an opportunity to address fault, so, in many ways, a pendente lite hearing is not at all like your final divorce trial. But it is a chance to go in front of a judge, present some of your preliminary evidence, and at least get an idea of what you might expect in a trial later on. That’s not to say, of course, that child and spousal support are predicated on what’s awarded at pendente lite, but, in my experience, a lot of the facts are fairly similar from the beginning of the case until the end, so it can at least give you a barometer to gauge.

4. You can have a judicial settlement conference. A judicial settlement conference is an opportunity to settle the case. You and your attorney, as well as he and his attorney, get together with a retired judge to go over the issues in your case and try to reach resolution before trial. Because you’ve already filed for divorce, the cost of the judge’s time is covered by the court system. Though you could have a JSC without filing for divorce, in that case, you and your husband would likely have to share the cost of the judge’s time – on top of paying your attorney for his or her time – which, as you can imagine, can add up. It’s still a fairly expensive proposition in the sense that you’re still paying attorney’s fees, but having the judge’s time covered is a major advantage.

Talk to your attorney about your case, and what steps you should be planning to take. If you’re not sure how to proceed, your attorney can likely give you more information and help you decide what to do. For more information or to talk to an attorney about the specific issues in your case and whether to continue negotiations or go to court, give our office a call at 757-425-5200 to schedule a confidential consultation.