Should I Litigate My Divorce or Try to Settle?

In Maryland, you can get divorced in one of two ways – an uncontested divorce or a contested divorce. An uncontested divorce involves getting an agreement between you and your spouse and submitting the settlement agreement to the court, which will then incorporate your agreement into your Judgment of Divorce. While you are still required to appear before the court for an uncontested divorce and testify that you understand the agreement/want to move forward with the divorce, there is no testimony for or against your spouse or arguments about why the court should do what you want. As two consenting adults, you and your spouse have the right to divide your assets and come up with an agreement that resolves all the issues arising from your marriage, including division of property, alimony, and custody/access. The other option, a contested divorce, is going to court, presenting your testimony/evidence, and letting a judge decide what should happen with division of property, alimony, and custody/access. After discussing these options with potential clients in a consultation, the next question is inevitably – which is better an uncontested or contested divorce?

While there is a certain amount of “it depends” in any family law answer, there are many advantages to trying to get an agreement and do an uncontested divorce. Some of the top reasons to try and settle include:

1. Keep Costs Down – If anyone tells you litigation is not expensive, they are not being forthcoming about the process. I always give my clients the frustrating advice of “your divorce is going to cost what you and your spouse want it to”, but it is accurate. If you litigate your divorce, it can cost tens of thousands of dollars or more. Some of that cost can potentially be avoided, depending on how the case is handled, but just the length of the process and requirements to go to trial are going to drive costs up. While negotiating terms of a divorce still requires time and costs, they are minimal (in most cases) compared to what it costs to go to trial.
2. Limit the Time – In most counties, it takes about 12 months to get divorced (from the time you file to the time of your divorce hearing) to get divorced. Very rarely do judges rule “from the bench” where you get a ruling at the time of your divorce hearing – so it can be a few additional months after your hearing until you actually get the decision.
3. Avoid Uncertainty – Going to court is a little like playing poker. If an attorney ever guarantees you a result, you should probably find another attorney. Family law is not like most other areas of the law; it focuses on what is equitable and what is in the best interests of the child. With the exception of guideline child support, there is no formula judges are required to plug numbers into to determine division of property or alimony. There are factors for division of property, alimony, and what is best for children, but what judges consider for each of those factors varies greatly. Any good litigator will tell you a judge has a lot of discretion when determining division of property/alimony/what is best for the children. Most parents find the idea of having someone who has never met their children determine what is best for them terrifying and it is not an unjustified feeling. Reaching an agreement allows you to control what happens to your property and your custody/access schedule. Moreover, sometimes judges make decisions that even an attorney cannot explain. While there are appeal rights when a judge makes a decision, because trial judges are granted a lot of discretion, it is difficult to have their decisions overturned and appealing a case takes a lot of time/money.
4. Creative Problem Solving – One of the absolute best things an agreement can do for you is allow you to do things that a judge cannot order. When you are getting a divorce, there are a limits on what a judge can order; for example, if one party wants use and possession of the marital home so they can live there with the children, the court can only award up to three (3) years of use and possession. If you and your spouse really like your school district, you could reach an agreement that one of you can have use and possession for more years (4, 5… or until your children graduate high school). While the judge cannot order that, a court can enforce the agreement that you and your spouse made. Another example is alimony. When a judge orders alimony, it is always subject to future modification. There are potential benefits to both parties to have an alimony award be non-modifiable, which the parties can do by agreement. This way both parties know how much alimony will be and for how long, and neither of them can try to change the amount/duration. You can do essentially anything you would like in an agreement, which is then enforceable by the court. So, it allows you (and your attorney) to come up with solutions that work for you/your family that the court cannot otherwise grant. Agreements are also almost always more in-depth than a judge will put in an order, so it gives you the ability to be very specific about how things will be handled and avoid uncertainty in the future.
5. Preserve Co-Parenting Relationship – The litigation process is adversarial by nature, so for most people, the litigation period is extremely tense. If you have children, that tension often leads to issues co-parenting. Everyone “keeps score” while litigation is going on, so that can lead to disagreements over things that usually would not be an issue. Additionally, in some cases, the things each parent says about the other during litigation or trial create rifts between parents that cause additional conflicts. While in many cases, it does get better after litigation, that is not always the case.

Of course, there are circumstances where you are not going to be able to get an agreement and settle. If one spouse is completely unreasonable – such as demanding 100% of all the marital property, which is not what would happen under Maryland law – then an agreement would not be possible. There are also circumstances where one parent takes an unreasonable custody/access position given the circumstances, and the other parent simply cannot agree to the terms proposed. In these cases, it is a judge’s job to make a decision about the issues. After hearing all the testimony and evidence, a judge will equitably divide your marital property, make a determination of if there is going to be alimony, devise a custody/access schedule, and award child support if warranted.

If you are considering a divorce or custody action, meeting with an attorney can be extraordinarily helpful in understanding your rights and determining the best way for you to move forward based on your goals. At Weinberg & Schwartz, our team of experienced family law attorneys are happy to meet with you, answer your questions, and give you advice on next steps.