Schmidt Law Services Blog

Lisa Schmidt
Why your divorce shouldn't go to trial.

Why Your Divorce Shouldn’t Go To Trial

I get it. You feel hurt. You want your day in court. You want justice! But have you thought about what taking the witness stand will do to you, your children, and your bank accounts? There are very good reasons why, usually, your divorce shouldn’t go to trial.

Going to trial in a divorce case is rare – rare enough that as I went through four days of testimony this past week, attorneys gathered behind me in the audience to watch. And that is as it should be. Divorce shouldn’t go to trial very often.

A divorce trial is a grueling experience for everyone involved. Emotions run high. Objections fly. And it always takes longer than you thought. You might think that is as it should be. It should be hard to get divorced.

But there are easier ways. Negotiations, mediation, and collaborative divorce methods all get to the same goal without the anger, embarrassment, and expense of trial.

You Will Get Hurt in a Divorce Trial

As a lawyer, I play two roles. Up until trial, it’s my job to come to a fair settlement. I will be pleasant with you, negotiate with you, and recognize your needs as we try to work through a resolution that will satisfy everyone.

But when we go to trial, my role changes. I am now my client’s advocate. A divorce trial is when all the dirty laundry is hung out in the open. Once you take the stand, it is my job to shine light on all your secrets and point out every time you lie, or even just get confused.

It is adversarial, and that means you will get hurt. I will hurt your feelings by bringing up issues you would rather stay private. I will hurt your credibility by showing where the documents contradict your testimony. It’s not personal, it’s my job. But by the end of the day (or days) when you testify, you will probably hate me because you got hurt.

Your Privacy is Gone

What happens in negotiations and settlement are private. Attorneys can’t even use statements made during negotiations in court. So if you and I discuss settlement and you admit that you moved some funds into a private account or that you have a drinking problem that affects your kids, it won’t hurt you.

But once you decide not to settle, I still know what you have told me. And it is my job to dig up the documents, pictures, text messages, and witnesses who will help me prove it. A divorce trial obliterates privacy. Your bank records, credit card receipts, and call logs are all fair game. Your friends and family can be forced to testify against you. You will have no secrets by the end of trial.

A Divorce Trial is Expensive

Even though emotional strain and embarrassment are compelling reasons not to take your divorce case to trial, that’s not usually why people decide to settle. That happens when they realize just expensive it is to go to trial. The average attorney in Michigan has a billable rate of $245 per hour. If an attorney does nothing but appear in your divorce trial all day, that’s $1960 per day. And that doesn’t count the time spent preparing for trial. If you decide to have your day in court, you will pay your lawyer to:

  • Review every document in your file, looking for evidence
  • Research legal arguments
  • Write a trial brief (which can be 20-30 pages, plus exhibits)
  • Prepare exhibits
  • Prepare witness lists
  • Write questions for every witness
  • Meet with witnesses to go over testimony
  • Review every document the other side produces for trial.

Now multiply that cost by two. After all, your spouse is paying a lawyer to do all the same things. A hotly contested divorce trial could quickly add up to more than $20,000.00! If you are arguing over less money than it costs to pay the lawyers, you may want to cut your losses after all.

Why People Want to Go Through a Divorce Trial

Even with all the down sides, you may still want to take your case to trial. Whether it’s a difficult legal issue, a custody problem, or sheer stubbornness, sometimes one side just won’t budge.

Many divorce trials involve a stalemate over custody of children. There is no amount of money that is too much if you feel as though you are losing your kids. Even when there are reasonable Friend of the Court recommendations, divorce trials can happen because neither parent wants to give up their kids.

In other cases, unfortunately, the spouse that refuses to settle is simply trying to “get back” at their ex by making him or her pay for trial. This is a short-sighted and emotional decision. Often the judges see through it and it ends up hurting the stubborn spouse in the end.

Being angry is never a good reason to go to trial. If you don’t have something worth the pain, embarrassment, and cost of the process, do the smart thing and settle. It will protect your pride, your privacy, and you bank accounts.

Lisa J. Schmidt

Lisa J. Schmidt is a divorce attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. If you are considering a divorce, contact Schmidt Law Services today to schedule a consultation.

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