When a divorce needs to be litigated, a judge takes the decision-making out of your hands.
When a divorce needs to be litigated, a judge takes the decision-making out of your hands.
When, despite their best attempts, divorcing parties are unable to agree on one or more issues under discussion, a divorce may be litigated, meaning a court will make the final decision.

Litigation remains the most costly, most time consuming, and least predictable of all the methods of settling a divorce case. While people with no experience with the court system often assume that by submitting an issue to the court for determination, they will receive justice from an enlightened and brilliant judge, the truth of the matter is that “The Scales of Justice are held by people … not statues.” In other words, judges are just human beings, and their decisions reflect a wide variety of judicial experience (or inexperience) and knowledge (or ignorance), and — more importantly — they usually agree with only one litigant.

Why negotiations may fail

Sometimes the parties in a divorce have vastly different ideas about an issue and are unwilling to compromise. Sometimes their philosophies are so divergent that talking through any of the difficult emotional issues that arise in a divorce becomes impossible. In some cases one party may have an attorney exacerbating the situation in order to milk more fees from the case. Finally, there are some legal issues complex enough that no compromise exists and a court needs to intervene to decide the matter. In these cases, a litigated divorce is always an option, though all parties should seek to avoid litigation.

Why litigation is the worst way to divorce

Fully litigating a matter through the court system involves many, many hours of billable time that have nothing to do with the ultimate settlement of your matter. Cases that cannot be settled often involve a good deal of pre-trial motions, which means your attorney will be billing you for writing, submitting, and serving what are often enormous amounts of paperwork. On the day (or days) of court conferences and trial, attorneys and clients often have to sit for hours in the hallways (hours which are billed to the client), waiting for the judge to finish with his daily calendar before starting the scheduled hearing. Trials are often conducted on non-consecutive days, meaning that the parties may have to take additional days off from work, which results in further costs to the client.

At the end of the process, a judge may come up with a ruling that neither party agrees with, but with which both will have to live.

Litigation should be your attorney’s last choice, not their first

Many attorneys urge their clients to go to court at the earliest opportunity. That’s great for their billing, but rarely in their client’s best interests. At Breiter and Gura, we take advantage of our long experience in all types of negotiated solutions to keep most of our cases out of court.

However, if a litigated divorce becomes necessary, rest assured that our attorneys will draw on decades of court experience to give our clients the best opportunity at success in court.