Most divorce cases settle in mediation or collaboration and will never make it to traditional divorce court. But by some estimates, around 10 to 15 percent of divorcing couples will end up taking their case to court.
We won’t sugarcoat the situation: there aren’t many – if any – positive things to be said about divorce court. You may or may not receive a favorable ruling that works in your interest, and it’s the most expensive and most conflict-riddled way to get divorced. You might be someone who is dealing with an unreasonable spouse, and so you may have no other option but to take the case to court and fight for your basic rights. But if you’re on the fence trying to decide whether or not to litigate your case in court, (or if, heaven forbid, you’re the one who is harboring unrealistic expectations), this information will give you some ideas about what you can expect.
- In court cases, your divorce becomes public record
Unlike the other forms of divorce discussed, divorce court is not private. You litigate your issues in a public courtroom, where everything discussed becomes public record that can then be accessed by anyone. So that detail about your husband’s cheating or his accusations that you’re a closeted lesbian who never attempted to please him? All of this becomes public fodder for anyone with the desire to look into it. If this idea seems appealing – then maybe it’s a way to shame your ex for his or her misdeeds – pleas remember that your ex’s attourney is going to look for an angle to slander you just as badly. Something else to think about: Children are often the ones who access these records as they get older and want to know more about what happened.
- Litigation in court extends the divorce process
Divorce through mediation or collaboration can be finalized in weeks, (after any state-mandated waiting periods have been observed), whereas a traditional divorce in court can drag on for a year or more. As former judge Marilea Lewis states, “The family law courts are crowded, and docket delays are often unavoidable. Waiting for your trial date can extend the time it takes for your divorce to be finalized, costing you money and increasing the opportunity for tension.” (D Magazine, Oct. 2011, p. 140)
- Expect sticker shock when you take divorce to court
Litigating a divorce in court can grow expensive in a hurry. As one man laments, “my lawyer wanted $20,000 up front before our 3-day trial. It was a lot of money, but what could I do? It was too late to go back and try and reach an out-of-court settlement. We had burned those bridges.” (Friemen, 2005, p. 43) It’s not just the time spent in court itself, it’s also the time spent preparing the case, billed at $250 an hour. And there are always issues that come up which complicate the process and give lawyers a reason to bill more hours.
As a general rule, when lawyers cite you $20,000, that’s to get you in the door to sign the contract. By the time it’s all over, it could be $40,000 or even $60,000. Whatever your lawyer told you it would cost to litigate the case, expect that it could potentially be double that. Lawyers always give estimates based on the most optimistic circumstances, because they don’t want you running out the door screaming. You also need to ask yourself whether what you have to gain can make up for the extra time, money, and heartache you’ll spend in litigation.
“Going to court wasn’t what I thought it would be.”
– A divorced father (Frieman, 2005)
- Rosy expectations seldom match reality
Those involved in the system warn that “having your day in court” is rarely as satisfying in practice as it seems when imagining it. This is because no matter how just your cause may be; you’re unlikely to get everything you want. If you take it to court, you’re not in control, the judge is, and they’re unlikely to see eye to eye with you on every argument. Even when they believe you’re the most responsible person involved, this doesn’t necessarily equate to giving you everything you ask for. Judges try to be fair, even to the less-than-noble spouse.
- Divorce court may not end the litigation
Judgments don’t do any good if the parties involved don’t abide by them. And the more contentious and heated the battle gets, the less likely the parties are to abide by these arrangements later. Those who lose a court judgment are the least likely to be cooperative in abiding by the terms of the divorce. Thus legal battles can often draw on for years, long after the divorce papers are finalized.
In this way, it’s sort of like small claims court: Winning the case may only be the beginning, and it doesn’t ensure the other party will fulfill their obligations. If your partner is determined to thwart you, they can simply ignore the ruling, in which case you’ll have to then sue to collect and enforce it. Only on issues of child custody will the police become involved to enforce the order. In all other matters, including child support, you’ll have to go back to court and take further steps to enforce the terms of the divorce.
- This is typically the most harmful type of divorce for children
If you and your partner end up in court, it’s because there’s too much conflict for you to reach an agreement. This also means your children are exposed to this conflict, and it WILL harm them. But there are other complications as well. Couples who litigate wind up with rigid, inflexible arrangements, especially on issues of custody. And because of the past history of litigation, they’re unlikely to bend or make accommodations within these arrangements to better suit a child’s needs. This means that children are locked into a rigid structure that is not in line with their interests or general welfare for many years to come. Once again, your relationship with each other has trickled down to them.
What to expect in divorce court
The length of the trial will depend on the number of witnesses called and the complexity of the issues. The more agreements you can reach ahead of time, the faster it will go. Each side can call witnesses to bolster it’s case, and you may have to pay for expert witnesses to testify.