The Unfortunate Reality of Contested Divorce

Karen BigmanBlog, Divorce Process

high-conflict divorce

I recently had a client who filed for divorce in New York last August 2017 after every attempt was made to avoid litigation; the trial date was in July of 2018. What my client had hoped would be a speedy process is well into its second year and close to $100,000 in legal fees. Unfortunately, I see this all too often.

One party believes that they will get more money than is feasibly possible and that the Judge will side with them as the wounded spouse. They want justice at all costs. The good news/bad news (depending on which side of the case you’re on) is that the law doesn’t work that way. I don’t believe there is any divorce that ended up better off because they went to trial. In fact, less than 5% (according to most attorneys) of cases actually end up in trial.

Forget the idea that the law requires ‘a speedy trial.’ My guess (and it’s really just a guess based on what I’ve seen) is that it refers to the length of the actual trial, not the proximity to the date of filing. I have yet to see a litigated divorce that happened in a timely, cost-efficient manner.

The courts are inundated with cases. Judges will do everything to encourage the couple to settle, at preliminary conferences, court appointed mediation, in the case I’m referring to above, the Judge even came into the negotiations to encourage the Plaintiff to settle, telling her that she would not end up with a better deal than what was offered, she still insisted on a trial.

Whether it’s the glamourous, drama-filled visions of court we see on TV or it’s just plain short-sightedness, for some reason, certain individuals believe that the Judge will offer some magical solution that will be exactly what they were looking for. Not only won’t that be the case, but the judge has complete discretion about what gets decided. One attorney told me about a case where the same judge ruled one way in one case and then the opposite on the same issue in another.

There are no guarantees at trial! The only way you can know what you will be agreeing to is by settling your case before trial.  What can you do to avoid trial?

1.    Do your homework.
2.    Hire good counsel.
3.    Make your case based on facts, not emotions.
4.    Stay involved and on top of everything that is going on.
5.    Be realistic.

If you’ve done everything you can and still end up in a trial through no fault of your own, at least you’ll know that you did everything in your power, with any luck, the judge will know that too.