There are two ways to get a divorce in Minnesota: reach a settlement agreement sometimes called a Marital Termination Agreement at some point in the divorce process, or go to trial.
Many people enter the divorce process in a state of heightened emotion and have their eyes fixed on a divorce trial as the thing that is going to give them justice. They will have their “day in court,” and their spouse will be made to admit and pay for their misdeeds. A divorce trial certainly is one way to achieve definitive closure on your marriage. But is it the best way for you?
It’s difficult to determine exactly what percentage of divorces go to trial, but estimates range from about 2% to 10%. In any case, the vast majority of divorce cases settle. Let’s explore the differences between a divorce settlement and a divorce trial, and when it might be better to insist on a trial for your divorce.
There is a reason that the great majority of divorces settle. Settlement usually means that the divorce is over sooner, with fewer legal fees and less overall expense. That means that you can move on with your life more quickly, and have more resources with which to build your future. But there are other benefits to settling your divorce as well.
Settling usually results in less conflict than a litigated divorce. Assuming you will be sharing a co-parenting schedule afterwards, the exchanges are usually less antagonistic since the schedule was done by agreement. Less fighting also means less stress for you, and importantly, for your children. The emotional toll of divorce is hard to measure, but we know that prolonged fighting makes it worse, especially for kids.
Settling also gives you more control over the divorce process and the outcome. Even after a lengthy trial, a judge won’t know your family’s needs as well as you and your spouse. A judge is unlikely to take the time to craft a solution designed for those needs. In contrast, you and your spouse have a much better idea of what will work for you and your kids and your agreement will reflect that joint wisdom. You also have the power to agree to creative solutions that a court would not, or could not, order.
While the advantages of divorce settlement are great, settlement is not for everyone. If you have a spouse who is unwilling to negotiate honestly, you may have no choice but to go to trial. Similarly, if your spouse is abusive or has substance abuse or mental health issues, they may not be able to participate in a productive settlement process.
There are a few circumstances in which the benefits of a divorce trial outweigh the negatives (which we will discuss shortly). If you feel it will not be possible to negotiate a fair settlement, it may make more sense to go to trial. But discuss this with your attorney first!
There are some situations where successful negotiation seems impossible because you and your spouse are not getting along. However, with the support of your attorneys, or the structure of alternative dispute resolution processes (ADR) such as family mediation, you may find it possible to negotiate respectfully, fairly, and effectively.
One situation in which a trial may be necessary is if there is an issue on which no compromise is possible, such as the children’s safety. If you believe that your children are in real danger spending time alone with your spouse, you may have no choice but to present evidence at trial in support of your position.
A trial will, of course, allow you to have your day in court. But it may not be as satisfying as you imagine. Since a divorce is not based on the fault of either party, the trial will not be a referendum on your marriage, who was right, who was wrong. The judge will be focused on the evidence before the court and deciding whatever legal issues are in dispute. Rarely does anyone come out of a divorce trial feeling like they “won,” even when the outcome was favorable.
The two biggest downsides of a divorce trial, of course, are the time and money involved. A divorce that goes to trial may take upwards of a year or two to resolve, during which time you are in limbo, unable to move forward with your life.
The cost of a divorce that goes to trial is usually significantly greater than the cost of a settlement. Unsurprisingly, most of that increase is in attorney fees and costs. The relatively few divorces that go to trial usually do so because they involve complex issues. Preparation is time-consuming and intensive. If the safety of your children is on the line, or the case involves significant assets, the cost may be worth it. Otherwise, you may find that you spent more in legal fees than you gained in the divorce decree—and had a much more stressful experience than was necessary.
Whether you decide to pursue settlement or need to take your divorce to trial, it is best to have the guidance of an experienced Minnesota divorce attorney. We invite you to contact Mundahl Law to schedule a consultation to learn about how we can help you.