I [Won’t] See You In Court!

June 15, 2021 O'Connor Family Law Divorce

We’re going to be blunt here: You do not want to go to trial to resolve your divorce case. Trial is messy, it’s expensive, and it takes control of your life out of your hands and puts it on the shoulders of someone who honestly probably does not really care about you. Thankfully, more than 90% of cases will find their way to a divorce agreement before we ever get to that point. It’s not surprising, despite the constant portrayal of these big courtroom spectacles and husbands and wives going at each other’s throats. Finding your way to an agreement with as little involvement of a judge as possible is the best way to resolve your divorce.


At any point during the divorce process, you and your spouse can come to terms and file an agreement to be submitted as the final judgment and order. In most cases, this is going to be much easier said than done. By the time a divorce has started, emotions are typically running high, there is tension over the risks and feelings of loss of assets or access to kids, or your soon-to-be-ex may just generally be an asshole. Those difficulties are good causes to get some help with dispute resolution so that there is a barrier between you and someone whom it is difficult to negotiate with. Still, the focus is getting to some kind of mutually agreeable terms. Negotiating all the terms you need can absolutely be done, even with the most stubborn and obstinate party across the table.

If you aren’t comfortable negotiating directly in mediation, this is where an attorney can work their magic. Either through litigation or the collaborative divorce process, a good attorney can help drive the negotiation process and get you towards your goals based on the strategy they built with you.

Remember – no one wants to pay for an expensive divorce. Most people would prefer to wrap things up as quickly as possible and move on with their life. Above all else, the cost is incentive to bring people to the negotiating table to get things done. Your soon-to-be-ex can either spend thousands of dollars on legal fees, or they can meet you in the middle somewhere and work constructively and keep that money for themselves (and vice versa).


Besides the significant impacts on costs, there are a lot of things about building the agreement without the verdict of a court. First and foremost is control. The more and more reliance you put on the court to resolve a conflict, the less and less control you have in relation to your future. The judge’s verdict is going to be final and absolute. There is no changing it to something you’d prefer once it’s handed down unless you can successfully clear the bar for a modification (we go over some examples of those here with alimony and child custody). Even then, a modification means going back to court and repeating this process all over again. There is an option to appeal a ruling from a judge, but it can not be understated how difficult it is to win an appeal. An appeal court assumes by default that the lower court’s decision was correct and you will need to prove otherwise. Even if you find some errors, the appeal court may still uphold the original decision because those errors were not relevant to the actual outcome.

When the parties retain control over the process, they are much more likely to arrive at an agreement that they both actually like. When the agreement is viewed as favorable by both sides, the probability of returning to court sometime down the road is much lower. While it’s not impossible that a modification may be filed or may become necessary, only having to go through this once is in everyone’s interest.

Additionally, a court is extremely public. In normal circumstances, you will be called into court for your hearing where all of your personal information is going to be plastered across the walls of the courtroom. Anyone can sit in the gallery while your hearing is going on, and it’s often filled with other people waiting their turn before the judge. Every excruciating detail of your life is going to be laid bare before strangers.


Getting to a separation agreement through any avenue can be a tough balancing act between finding a reasonable term and giving up too much. Negotiating in good faith is always a good idea, but don’t go past your bottom lines. There may be points where the opposing party will ask you to give something up that will upset your future goals and you’re not under an obligation to let those goals go if they are important to you. Your attorney can step in between these requests and work to craft a creative solution that preserves your positions.

The divorce process is going to involve a lot of give and take, and a lot of patience. At some points, it may feel like one of the most trying things you’ve ever gone through. When it’s all said and done, you will have a final agreement. Just don’t give that control up to the judge unless you absolutely have to.