Settling vs. Litigation – Which Is Best?
When a client is asking about settling vs. litigation, I tell them what I think will most likely happen in court, as well as what I think the best-case scenarios and the worst-case scenarios as to each issue if we go to court. In fact, I do my best to present all options, but real-life often throws a curveball that no one can predict.
Standardized Child Support & Spousal Calculations
There are standardize child support and spousal maintenance calculations that make it easy to predict what a court would do, which means that settling as to those numbers can save you the trouble of having to litigate them later.
Each court hearing costs $4K – $6K to prepare for, which is helpful to know if you are fighting over money. In practical terms, if you stand to gain $100K in your divorce (that your spouse won’t agree to give to you), then it may be financially worth it to litigate.
Have Children? Get Many Of The Small Issues Settled First
If you have kids, it’s good to settle on as many little issues as you can, even if you don’t agree on all of the major issues.
Items such as;
- Which holidays and times each parent will get.
- What exchange times and locations.
- Who will claim the children for tax purposes during what years.
- Whether the parents will have the first-right to refuse babysitting if the other parent has to be away overnight or all day for work. This is because there’s a lot for judges to decide and they may forget to rule on some specific issue that is really important to you. Additionally, you don’t want the judge to give you a ruling that is not well suited to your family on some specific issue.
Settling Vs. Litigation – Have Your Financials Ready
If you’re going to settle, it’s best to be 100% ready with all financials, and have all ideas hashed out before the settlement process. It would be best to try to reach a settlement quickly (over the course of a couple of days), rather than over the course of a couple of weeks. Prolonged settlement proceedings are very stressful!
If You Can’t Settle, Write Down What You Agree To And Move On!
Agree to disagree; no hard feelings; and go to trial so that trial will hopefully be minimally stressful. In a trial, you are relying on a judge who doesn’t know you or your children or spouse, to make decisions that impact your entire lives. IF both parties are being reasonable, avoiding trial is normally a good idea.
However, sometimes the power dynamic is such that one party controls the other. Sometimes the other party feels desperate to please or just get away, or one party is refusing to be reasonable. In many of these cases, I recommend going to mediation once to try to work it out, then be willing to save the fight for trial.
Generally judges will see an abuser, even when no one else does, and will divvy parenting time/things/child support/maintenance up more fairly than you would agree to if you are just doing anything to get away. Once you get away, you will need your needs met (a good parenting plan, money to live on, assets, etc.)!