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It may surprise you to learn that most divorce cases in Texas are not ultimately decided by a judge. In fact, the majority of Texas divorces are resolved through mediation or informal settlement negotiations, avoiding the need for a litigious divorce. Settling your case offers many advantages, such as saving money on court expenses, giving you and your spouse the ability to determine the terms of your divorce, and saving valuable time. However, despite these benefits, not every divorce can be settled, and some may inevitably turn into a more contentious, litigious process.
You may find that once your divorce begins, the circumstances, personalities, and tone of your divorce do not allow for a fair settlement. Instead, you and your spouse may need to proceed to a bench trial, where you will present evidence to a judge, who will make rulings on all divorce-related issues. The judge will decide matters such as child custody, property division, and spousal support. While this outcome may not feel reassuring, it’s important to be prepared for it.
The attorneys with the Law Office of Bryan Fagan, PLLC, would like to help you begin to think about the possibility of going to court for a trial in your divorce case. As we have said on this blog many times, settling a case usually means a better outcome than a trial. However, that does not mean that you cannot reach a fair and equitable outcome inside a courtroom.
What Exactly Does It Mean to Litigate a Divorce Case?
I used the term “litigate” in the title of this blog post. That term refers to a means why which parties resolve a legal dispute by going to court to have the judge in their case decide the disputed issues.
The judge will consider evidence in the form of testimony from the parties and their witnesses and documents offered by the parties and enter into the record to make the necessary decisions.
Litigating a divorce involves a couple of different things. First of all, a divorce is an intensely personal matter involving you, your spouse, family, property, and children. Nothing is more personal than these issues, so if you rely on a judge to decide on these areas, there must have been no way to reach a settlement.
Litigation Is Not Preferable to Settlement in Most Cases, but Sometimes It Is Necessary.
Nobody in the world knows your circumstances better than you and your spouse. A judge, while well-meaning and intelligent, will have had a concise amount of time to prepare for your trial and will not know anything of your family before you head to trial, most likely. This is not the most solid base from which to make sweeping decisions that will affect the course of your family for years.
On the other hand, you and your spouse are the best-equipped persons to know what has happened in your home, what is best for your children, and how to best structure your lives moving forward. However, in some circumstances settling a divorce is not possible, and as a result, parties will ask a judge to play a tie-breaker in their case.
What Situations Are the Most Likely to Lead To Litigation Being Necessary?
The attorneys with the Law Office of Bryan Fagan, PLLC, are prepared and experienced in representing clients like you in court. However, we do not eagerly seek to try your case in front of a judge. We will work tirelessly to ensure that you are in the best possible position to walk away from your divorce. For most divorces, that means working on a settlement with your spouse is what is for the best. In other cases, you may find that the only way to achieve your goals and reach an equitable result is to attend court.
Certain circumstances lead more frequently to the courtroom than do others. Here are three circumstances that we believe point readily to the judge becoming involved in your case.
Cooperation is Key
It doesn’t take a rocket scientist or a relationship expert to tell you that if you and your spouse are going through a divorce, you will likely have some issues to address in your marriage and family life. Despite those issues, most spouses can be somewhat reasonable and objective in their circumstances, leading to negotiation and settlement in many divorces. Having an attorney helps to remove some of the tension, but ultimately the divorce takes on the tone set by the parties. If you and your spouse display a willingness to compromise and cooperate, the divorce proceeds much smoother than if the opposite is true.
There are some issues where cooperation and reasonableness cannot bridge the gap between you and your spouse. For instance, if you and your spouse are at odds over which one of you will be the parent who gets to determine your child’s primary residence, no coordination can bridge that gap if one of you does not move from your position. Either you or your spouse may negotiate based on mistaken or poorly thought-out assumptions regarding how your case will proceed or how likely a particular outcome is in the trial.
If You Act Reasonably, You’re Likely to Receive a Reasonable Outcome.
Speaking of acting reasonably, you are in a position to see a judge if and when either you or your spouse begin to act unreasonably. You could be the most reasonable person on planet Earth, but if your spouse is not the same way, there is no path for your case to settle in all likelihood. It is a powerless feeling for an attorney to talk to an unreasonable client. We know that the better outcome for our client does not lie in the courtroom, but we do not decide on whether or not to negotiate.
My advice is to be willing to listen to the advice of your attorney when it comes to negotiating and the likely outcomes of your case. If you think that it will be possible to achieve a specific outcome, but your attorney disagrees, it is a good idea to speak to your lawyer and consider what they have to say.
Consider Unique Issues of Your Case.
Many divorces look similar to one another, but if your divorce has unique issues or circumstances, it may be necessary to go to court. This is especially true if those unique circumstances only affect you or your spouse, but not both of you. Your spouse may be unwilling to concede any ground in a particular area if he does not think he has anything to gain from doing so. It may be in your best interest to see the judge when you reach this point.
In conclusion, avoiding a litigious divorce can offer significant benefits, including cost savings, time efficiency, and more control over the terms of your divorce. However, it’s important to recognize that not all divorces can be settled amicably, and some may require a more adversarial approach. Understanding your options and working with an experienced attorney can help you navigate the process—whether through settlement or litigation—to achieve the best possible outcome for your situation.
Questions about going to trial in your divorce? Contact the Law Office of Bryan Fagan
Did you know that the attorneys with the Law Office of Bryan Fagan, PLLC, offer free of charge consultations to prospective clients? We have availability six days a week to meet with you and answer your questions. Please consider contacting us today to learn more about our office’s services to you and your family during this difficult time. Thank you for taking the time to read this blog post.
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