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When is it necessary to litigate a divorce case?

It may surprise you to learn that most divorce cases in Texas are not ultimately decided by a judge. The majority of Texas divorces are decided in mediation or in informal settlement negotiations. There are many benefits to settling your case rather than proceeding to a trial. Saving money on court expenses, allowing you and your spouse to come up with the terms of your divorce and saving time are just a few of the more important aspects of settling a divorce.

Unfortunately not every divorce can settle. You may find that once your divorce begins the circumstances, personalities, and tone of your divorce does not allow for a fair settlement. Instead, you and your spouse may need to head to a bench trial wherein evidence will be submitted to a judge for his or her rulings on any and all subjects related to your divorce. Your children, your property, spousal support and issues related to each of these subjects will then be diced by your judge. While this may not make you feel warm and fuzzy inside it is an outcome that you should be prepared for.

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 much better outcome than going to trial. However, that does not mean that you cannot reach a fair and equitable outcome inside of a courtroom.

What exactly does it mean to litigate a divorce case?

I used the term “litigate” in the title to this blog post. That term refers to a means why which parties resolve a legal dispute by going to court in order to have the judge in their case decide the disputed issues. Evidence in the form of testimony from the parties and their witnesses, and documents offered by the parties and entered into the record will be considered by the judge in order to make the decisions that are necessary.

Going to litigate a divorce means a couple of different things. First of all, a divorce is an intensely personal matter that involves you and your spouse, your family, your property, and your children. There is nothing more personal than these issues so it would be fair to say that if you are relying on a judge to make a decision in these areas there must have been no way that a settlement could have been reached.

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 very short 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 tie-breaker in their case.

What situations are the most likely to lead to litigation being necessary?

While the attorneys with the Law Office of Bryan Fagan, PLLC are prepared and experienced in representing clients like yourself in court that does not mean that we are champing at the bit to try your case in front of a judge. On the contrary, we will work tirelessly to ensure that you are put in a position to be able to walk away from your divorce in the best possible position. 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 that it’s likely that you have some issues to address in your marriage and family life. Despite those issues most spouses are able to be somewhat reasonable and objective in their circumstances which leads to negotiation and settlement in many divorces. Having an attorney helps to remove some of the tension as well, 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 the primary residence of your child there is no amount of coordination that 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 is going to proceed or how likely a certain outcome is in trial.

If you act reasonably, you’re likely to receive a reasonable outcome

Speaking of acting reasonably, you are in 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 attempt to talk to a client who is unreasonable. We know that the better outcome for our client does not lay in the courtroom but we do not make the decision 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 certain outcome, but your attorney disagrees, it is a good idea to speak to your lawyer and to really consider what it is that he or she has to say.

Consider the unique issues of your case

Many divorces look similar to one another, but if your divorce has unique issues or circumstances then 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. When you reach this point it may be in your best interest to see the judge.

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 to answer your questions. Please consider contacting us today to learn more about the services that our office can provide to you and your family during this difficult time. Thank you for taking the time to read this blog post.

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