3 Myths About Going to Court in a Divorce

If you are going through a divorce, or know someone who is, often the greatest fear is the possibility of going to court. There is a perception that divorces that end up in court will have dramatic, unfair outcomes by a judge who doesn’t know what’s best for the divorcing parties, likely due to movies and media that portray it this way. 

The truth is that while most people want to stay far away from court, it’s sometimes to their own detriment. Even parties who may use court as a “threat” during settlement discussions often don’t want things to end that way. While only 5% of divorcing parties end up in court, there are myths about court being a negative and scary experience. 

In this post, we discuss three common myths about going to court and educate you on the reality of these situations.

Myth 1: I must have an attorney to go to court

Although navigating the details of court on your own may feel overwhelming, in 85% of cases, one party does not have an attorney. In fact, over 50% of overall divorce cases are settled without involving attorneys. Therefore, it’s not uncommon for judges to hear from parties who are representing themselves. If you plan to navigate court on your own, we highly recommend you prepare yourself by hiring a team of advisors to educate you on the various aspects of your separation agreement, from financial advisors to tax professionals to realtors to attorneys who can guide you on an unbundled basis (hourly) providing expertise when needed. Having professionals help you understand what is reasonable and possible will make your position to the judge stronger.

If you do end up feeling like hiring an attorney to fully represent you is the right option at any point along your divorce journey, screen for a settlement-oriented attorney from the start. Hiring an attorney with the expectation that they can help you reach a settlement outside of court can help you feel like you have done everything possible to try and work out a separation agreement and parenting plan (if applicable) prior to moving into the court process. Remember, it’s okay to change your attorney during the process in order to align better with your values and desired outcomes.

Myth 2: If I go to court, I no longer have control and my family’s fate will be left up to a judge

Unless one party is highly contentious, it’s unlikely that either party wants to go to court to settle a divorce. However, one party might threaten this in order to expedite settlement by saying things like “fine, if you don’t agree with me, we’ll just go to court” or “I’m tired of trying to come to an agreement, let’s just let a judge decide”. These are often just empty statements in a desperate effort to try and reach an agreement. If you are hearing phrases like this from your ex, you might see this attitude changing as the divorce process drags on. Sometimes getting closer and closer to having a court date prompts more reasonable settlement between parties and/or their attorneys.

While it might feel like you are leaving your fate up to a judge by going to court, sometimes, the only option is court because the other party is offering settlement options that are so bad and unreasonable. When these dynamics are present, your worst-case scenario of going to court is BETTER than settling for what is being offered. When all options on the table are worse than what would be granted by a judge, a trial can give you the chance to petition for more, such as a greater share of the assets or more time and decision-making authority with the children. If you and your lawyer feel you have a strong case, then you may decide it’s worth going to trial. 

Court might also feel like an expensive choice as you have to pay your attorney to both prepare your case and represent you in the courtroom. However, sometimes court can save you money if there is continuous back and forth and too much unresolved conflict that is eating away at your lawyer’s time as you try and work toward settlement.

Myth 3: An attorney will create more problems in my divorce

There is definitely a general myth in society that attorneys want all your money, cause more contention, and create more fights with your former spouse. Once again, this is likely portrayed in the movies and media and we are therefore programmed to believe this based on exposure to these stories. While it can be the case in some more rare situations, most attorneys should be an advocate for you, your goals, and the best interest of any children (when involved). They should greatly reduce the drama, communication, and fighting between you and your ex. 

While attorneys don’t usually create more problems, this myth is a good reminder to screen and hire a reasonable, settlement-oriented attorney. This type of attorney will prevent the threat of court from the start, if possible. In order to find a settlement-oriented attorney, ask for referrals from friends and family, read online reviews, check references from their past clients, and always interview attorneys before selecting. 

In the rare case you know you’ll end up at trial anyway based on the difficulty of negotiations, lack of success, and existing issues, it may make sense to plan toward that outcome and choose an attorney who has experience in court. This might be the case if you are working with an extremely uncompromising ex, abuse issue, a spouse who is hiding assets, or a former spouse who is seeking an extreme situation like full custody of the children.

At A.M. Financial, we can help you alongside divorce planning and negotiating. We can advise on financial options to include in your separation agreement based on what is happening now and what you may encounter down the road. We can work alongside your attorney or directly with you to collectively create a tangible financial plan to support your present needs and future goals. Contact us to schedule a free consultation today.