Why Knowing the Risks of Settling Versus Going to Trial is Critical to the Outcome of Your Divorce


A common expression I hear from family law judges is that the perfect outcome of a divorce is where both parties feel disappointed because they did not get everything they wanted. Although I do not agree with the notion that people should feel dissatisfied at the conclusion of their divorce, I believe in many cases, it makes sense for parties to settle rather than go to trial. I hold this belief based on the risks people take when they refuse to settle.

When contemplating whether or not to reject an offer and go to trial, parties should understand that the outcome may be drastically different from what was expected. After all, the family court judge has broad discretion in deciding most issues, and we never know how the facts and parties to a case may be perceived by the judge. This is why in most cases, I would encourage parties to make concessions that they can live with. For example, in a child custody dispute where the parties agree that the mother will have primary custody, it may be wise for the mother to concede to the father’s demand to share custody during the children’s school holidays. When taking an issue like this to trial, a judge could easily see the mother as acting unreasonable and award the father much more custodial time than what he originally agreed to take.

On the other hand, I would never advise a party to give away the store for the sole purpose of finalizing the matter. There are many cases where a party does not have a choice to go to trial because the opposing party is taking ridiculous positions on significant issues. Sometimes there is too much money to lose by caving in to the other parties’ settlement position. An example of this would be an opposing party refusing to an equal division of the community property, including the net proceeds from the sale of the family residence or the community’s retirement accounts.

For these reasons, I would advise any person struggling with the decision to settle or take the matter to trial, to consider all the risks involved. First, the party should make a list of the possible negative outcomes that can happen by settling or going to trial. Next, the party should decide if he or she is willing to live with the potential adverse results. Finally, I would advise a party to get a feel for the probability that the court will rule in his or her favor. There are specific issues, such as child support or reimbursement claims, that are much more predictable than others. Having a sense of how a judge will rule on a particular issue requires experience going to court on the same or similar issues, and an understanding of the relevant law. Thus, I’d advise parties to obtain the opinion of an experienced attorney or a retired family law judge on the likely outcomes.

At the end of the day, the perfect divorce is not where a party walks away feeling disappointed. On the contrary, the perfect divorce is where a party feels satisfied he or she made a sound decision after the risks of settling versus going to trial.