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Divorce: To litigate, or not to litigate, is often the question

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Every divorce is different. Some are straightforward and calm. Others are complex and emotional. Where a divorce falls on than spectrum influences the issue of potentially taking the divorce to court in Illinois. Three questions can help sort out whether going to trial is the right approach.

First, what is being argued about? If there is common ground, negotiation can prove effective. If there is complete disagreement, a trial may be necessary to break the impasse. For example, topics like the amount of spousal support or the terms of a shared child custody agreement are often best dealt with through negotiation. In contrast, topics like whether there should be any spousal support or shared custody at all may be decided best in court. Similarly, if one spouse refuses to disclose assets or income, or makes outrageous demands during asset division, again, the courtroom might be the most appropriate option.

Second, how much will the trial cost in both time and expense? In many instances, the answer will be "too much." It makes little sense to go to trial if the trial costs exceed the cost of agreeing to a spouse's request. Plus, there is no guarantee on how the court will rule. A spouse could end up losing the argument and paying litigation expenses. This scenario does not mean that a person should automatically acquiesce to their spouse's demands, but it does mean stepping back and thinking about the costs that can come from being too stubborn.

Third, what role do emotions play in the process? The more emotional the spouse, the more likely a trial will be necessary. For example, if a spouse is abusive, narcissistic or obstinate, negotiations may simply not be an option, even if the other spouse tries his or her best to remain calm. Still, before choosing a trial or opting to negotiate out of court, it's helpful to perform a cost-benefit analysis. Ask how much the trial will cost and whether the net result is worth that cost. Sometimes it's worth it, sometimes it's not.

Source: Forbes, "Divorcing women: Is it best to litigate or settle?" Jeff Landers, May 22, 2014

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