When you decide to divorce in California, negotiation is unavoidable and a part of the divorce process. Negotiating the terms of a divorce with your spouse is challenging even if you are still on friendly peaceful terms, but much more complex, seemingly impossible, when you can't stand to even talk to them. What you should know, however, is that the vast majority of divorces settle without a trial in a California family law court.
Estimates of out-of-court divorce settlements are around 95% or higher. Some might find this fact surprising based on the typical appearance of dueling husbands, wives, and divorce lawyers in the courtroom in front of a judge.
The primary reasons for most divorcing couples avoiding the family law courtroom become clear once you take a moment to step back and consider the enormous advantages of reaching a mutual agreement without going through the stressful litigation process.
Whether your divorce case is simple or complicated, you and your spouse have to decide on many different essential issues, including:
- how assets and debts will be divided,
- whether you will share child custody,
- whether a spouse will pay spousal support,
- who will remain living in the marital home.
There are just a few examples as numerous other decisions must be made before the divorce is finalized. In other words, compromise with your spouse is an essential part of the California divorce proceedings.
Whether you like it or not doesn't matter. Accept it because you can't change it. Focusing your effort and energy on educating yourself on knowing when to settle or litigate can help ease the stress of a divorce for both you and your children.
Our Los Angeles divorce and family law attorneys will review this topic more closely below to give you a better understanding.
How Do I Know When to Settle?
When you get a divorce in California, you will usually meet with a family law lawyer to review all your options. This is when vital details will be reviewed, such as estimating the value of the family assets and debts and your spouse's specific role in the marriage.
Depending on the specific details of the divorce, this review and subsequent related work can become very expensive quickly. Let's be honest. It's not complicated.
A contested divorce in a family law courtroom can take a long time and cost a lot of money, not counting the high emotional stress and lost time from work. However, if you are willing to compromise out of court on dividing property, for example, you could avoid some of the high costs associated with litigating the matter in court.
Put simply, settling out of court will avoid some of the high costs often associated with a divorce. As long as both spouses commit to cooperation, mutual agreements could be sufficient to finalize the divorce.
So, one of the primary reasons for knowing when to settle is to take an honest look at the costs of not settling out of court. This frequently motivates spouses to compromise on the details of their divorce.
Finally, and more importantly, you should settle your divorce out of court if it's in the best interest of your children. Litigation and arguing can be very traumatic experiences for kids.
Settle to Avoid an Unfair Judgment or Losing the Case
Another essential reason to settle your divorce out of court is to avoid the risk of an unfair judgment made inside the courtroom. Suppose you cannot compromise with your spouse and agree on divorce-related issues, such as child support, child custody, alimony, and dividing property. In that case, someone else will decide for you.
A family court judge will evaluate the evidence and decide what they believe is in your family's best interest. Their judgment is not always fair because they often have incomplete information or rely on your spouse's false statements. Judges are human too and make mistakes.
They are not perfect, and some of their decisions are wrong and unfair. There are no guarantees you will get the desired outcome. Making the matter worse is the expense of getting your divorce matter in front of the judge in the first place.
A judge is essentially a stranger who makes decisions based on California family laws as written. Do you want to force them to make crucial life-altering decisions because you were too stubborn to compromise?
Many spouses in divorce feel wronged and seek revenge regardless of time or costs. This approach never ends well. If you want a fair settlement in your divorce, then you better find a way to settle issues out of court. It might not be all you hoped for, but leaving the decisions to judge is high risk.
There is the issue of losing your divorce case in court. When you force a judge in a family law courtroom to make a decision, they will have to rule in favor of one spouse. That's how the system works.
There is always one winner and one loser when the divorce case proceeds this far in the process. In other words, you could walk into court expecting one outcome but walking out without anything you had hoped for.
How Do I Know When to Litigate a Divorce in Court?
While we have discussed reasons to settle out of a divorce court above, we have to acknowledge there are situations where it's simply impossible to reach an agreement out of court. You just might be forced to take your divorce case in front of a judge when negotiation has failed.
Perhaps you and your spouse can't agree on who gets to keep the kids on major holidays such as Christmas and Thanksgiving. What about the kid's birthdays? Perhaps your spouse who has primary child custody is attempting to exclude you entirely from the life of your kids. Yes, this happens.
Let's again be honest. Some divorces are when one spouse refuses to negotiate, compromise, or even make rational decisions. They want revenge, and you are their target.
If this is true, then a court hearing may be the only way to protect your rights. Another issue of knowing when to litigate a divorce in court is financially related. You should ask yourself if you will financially benefit inside or outside the family court?
Perhaps your spouse is attempting to misreport assets. Further, litigation over the family home is pretty standard, and you will need to determine whether it's worth it.
What Are the Advantages of Settling Divorce Out-of-Court?
There are numerous advantages to settling your divorce outside the family law courtroom, such as the following:
Avoid the courtroom – many divorcing couples don't realize you do not need a family court judge to decide how to resolve the issues. You can use mediation or dispute resolution if you cannot reach a mutual agreement with your spouse. However, the best approach is simply negotiating with our spouse and keeping the court out of your business.
Negotiate crucial divorce matters – dividing assets, parenting arrangements, child support, and alimony can be negotiated outside the courtroom. If you can negotiate the terms in your divorce, you will find the entire dissolution of marriage process much more manageable with less stress, rather than having the mindset of fighting it out in court.
You can write the agreed-upon divorce terms into a contract and have your lawyer review and modify it as necessary. Once completed, the settlement can be submitted to a judge for final validation, which usually only takes a few moments at an informal hearing. The settlement will be formalized into a divorce decree, and the divorce is now final.
Depending on how quickly you and your spouse agree on the disputed issues, the most challenging part of a divorce can be finished before meeting your state's minimum waiting period.
Avoid litigation – if you decide to litigate your divorce, the process will take much longer and get expensive quickly. The most common issues for divorce litigation include dividing property, child custody and support, alimony, and who gets to keep the family pet.
This is a very time-consuming process and will make your attorney fees soar. Further, you are forcing a judge to hear testimony from both sides to decide on a fair settlement. It may not turn out as expected. Other benefits to settling your divorce out of court include:
- saving money,
- better control of the outcome,
- you have certainly over the outcome,
- increase chances your spouse will follow the settlement,
- avoid a return to court for post-divorce litigation,
- maintain a good relationship for co-parenting the kids
If you go to a divorce trial, you never know how the judge will decide your case. Contact our law firm to review the details if you need more information and legal options for a California divorce.
Furman & Zavatsky are based in Los Angeles County and serve people throughout Southern California. We offer a free case review at 818-528-3471 or fill out the contact form.