Divorce Law Monitor

Court is inevitable in divorce proceedings. Even if you and your soon-to-be ex-spouse are in full agreement on all issues, you’ll need a judge of the Probate and Family Court to approve your separation agreement and incorporate it into a judgment of divorce. The judgment of divorce legally terminates your marriage. In cases where agreement cannot be reached, there can be numerous appearances in court, including motions, pre-trial and trial. There are some reasons you may want to consider avoiding a trial and instead consider mediation or other forms of alternate dispute resolution:

1. Uncertainty: If you take your case to a judge to decide all issues or even just one or two issues that you and your spouse can’t agree on, there is uncertainty in going before the judge. Probate and Family Court judges have a lot of discretion in making decisions in a divorce, particularly those relating to child custody and asset division. So, one judge could decide your case differently than another, and parties do not get to choose which judge is assigned to their case. It can be hard to know what your assigned judge will do in your case and what the result will be after a divorce trial. Working with experienced divorce counsel, who knows what a particular judge is likely to do given their actions in previous divorces, will help you navigate this uncertainty and make the best decisions you can in light of your particular circumstances.
2. Time: The COVID-19 pandemic has created further burdens on the court system and has resulted in a significant backlog in virtually every division of the Probate and Family Court. If your case has to be tried in court, it may be years before you can finally have your “day in court.” Some Probate and Family Courts in Massachusetts are booking trials in 2023 (and that’s for cases that have been active and open for many months already).
3. Expense: Court can involve significant legal fees, especially if your divorce requires a full trial.
4. Emotional and Psychological Toll: Divorce is without question a difficult process, even if you and your spouse are amicable. Protracted divorce proceedings in court have a significant emotional and psychological toll. Having the court determine and rule on the issues in your case usually means that you’ll spend a long time in emotional and psychological turmoil as you wait for your case to be decided. This is an important factor that you’ll need to weigh in determining whether to settle your case or continue litigating.
5. Coparenting: If you have children and years of co-parenting ahead of you, and you want to have a positive relationship with your soon-to-be-ex, it’s typically much easier to work things out by agreement rather than having a judge decide. After spending months (or years) in a legal battle with your spouse, it can be hard to have a positive relationship, making it hard to co-parent productively.

There are situations where it is better to take your case to court. If your spouse’s position is truly unreasonable and they simply refuse to come to a resolution, the best course of action may be to have a judge decide — regardless of the time, expense, and emotional toll. An experienced and knowledgeable divorce attorney can advise you on the best course of action given your particular circumstances.