Should I settle or go to trial?

Broder & Orland LLC

This is a question that most divorce litigants face during their case. The majority of clients early on express a desire to settle. It’s a rare person who would rather go through the pain, anguish and financial cost of a divorce trial if there were an opportunity for an amicable resolution. Experienced divorce attorneys know that virtually all cases should be settled. But sometimes there are circumstances that make that impossible.

Do Custody cases have to go to trial?

Because of the emotional aspect of contested custody cases, it is sometimes difficult to settle them short of trial. This is especially so when one spouse or the other has engaged in abuse, or when drugs or alcohol are involved. But even in cases with these issues, competent counsel will access support from appropriate professionals to assist with arriving at a workable plan that is in the best interests of the children. It’s not uncommon to find that once the layers are peeled back, a dispute isn’t so much about custody as it is about a realistic Parenting Plan. At the end of the day, most parents should want to control their destiny and that of their children, rather than having a judge dictate the terms to them.

Do cases involving complex financial matters require a trial?

When there are disputes about financial matters, such as valuations, alternative assets, compensation structures, and real estate appraisals, it is sometimes hard to resolve a case without trial. However, if both sides have engaged in reputable experts, often those experts can work to resolve the difference between them, clearing the way for a settlement. When at all possible, it is preferable to come to an agreement outside of court, rather than presenting complicated financial testimony to a judge who is hearing it for the first time and who is forced to weigh in on competing experts who have a high level acumen and familiarity with the issues. 

Is it important to choose a divorce attorney with trial experience even if you are hoping to settle your case?

There are unquestionably certain cases that will end up at trial. Sometimes it is a result of the personalities of the parties and the degree of vengeance between them. Other times, it is legitimate that a result that cannot be otherwise negotiated. Having a divorce attorney with considerable trial experience is important. This is so even if it is clear the case will likely not go to trial because an experienced trial attorney will be able to provide context for you about a likely result after trial compared to a reasonable settlement. Also, if opposing counsel and his/her client knows the other side is a successful trial attorney, it may provide motivation to forge an out-of -court settlement. 

How and when do you decide whether to settle or have your case tried by a judge?

This is a decision that is often fluid throughout the case as circumstances change. For example, you may initially be steadfast in your desire to settle the case, but your spouse fails to cooperate or becomes entrenched in a position that is untenable. On the other hand, you may initially think a trial is the only way to resolve your case, but as the case is litigated, you realize that there are ways to resolve it amicably. An experienced divorce attorney, who has both excellent negotiation and trial skills, will be able to counsel you on your decision. At the end of the day, it is up to the client to make the final decision.

How risky can a trial be?

 A recent decision after trial by our office resulted in a shock to our client’s ex-spouse. Unhappy with the existing joint custody, he initiated an action for sole custody and forced a trial that lasted for sixteen days. Not only was his Motion denied, but the Court ordered that our client have sole legal custody! That is a stark example of the risk of going to trial.

Contact Broder & Orland Today

With offices in Westport and Greenwich, our divorce lawyers are skilled negotiators who strive for settlement whenever possible, but are also experienced and successful trial attorneys who can excel at trial when the occasion arises. We regularly counsel our clients throughout their case on the choice of whether to settle or go to trial and our experience has most often led to very favorable results. Please contact us today to go over your case.