Virginia Divorce: Settlement vs. Litigation

Ah, the ultimate question in your divorce case: Should I settle, or should I go to trial?

The answer to this question depends on the facts and circumstances.  Every situation is unique and various issues need to be considered when deciding how you should handle your divorce.  While you should speak with an experienced divorce and family law attorney for specific advice about your case, here are a few things that you should think about:

In Virginia, going to trial in a Divorce means that your fate will be in a Judge’s hands, not your own.

• If you and your spouse do not reach an agreement in your divorce case, normally a Virginia Circuit Court Judge will be responsible for deciding how to divide up your marital assets and marital debts, as well as how to resolve child custody, visitation and child support/spousal support (if applicable).
• Prior to making the final decision, most Judges will conduct an “equitable distribution” hearing, where they will hear testimony from both spouses and relevant witnesses, review evidence that is submitted, and hear arguments from the respective attorneys.  The duration of this hearing will depend on the complexity of the issues involved.  Normally, you and your attorney will have a limited amount of time to present and argue your case.
• As you can imagine, it is incredibly difficult for a Virginia Circuit Court Judge to truly capture the essence of a marriage in such a short period of time.  They don’t have an opprotunity to really get to know the parties; they have to make important decisions in a relatively short period of time.  Most Judges (in our experience at least) would be quick to point out that they will never know the circumstances of your marriage as well as you do.  Accordingly, one major benefit of settlement in a divorce case is the ability to construct the terms on your own.  You and your spouse always have the most information from which to draw up a fair and equitable resolution.

Going to Trial will often increase the cost of your divorce.

• For a variety of reasons, proceeding to trial will normally increase the costs of your divorce in Virginia.
• Attorney’s fees will often be far higher for a case that proceeds through an equitable distribution hearing than they would be for a case that is resolved by agreement.
• Prolonging the divorce process will also increase the emotional costs as well.  For most folks, dealing with a divorce is an incredibly traumatic experience and the sooner it can be finalized the better.  Additionally, if there are children involved, they will inevitably experience an emotional toll from their parents’ divorce.  Generally speaking, the longer things drag on, the greater the impact on the kids.

Going to trial may be the best option when your spouse is not offering a fair and equitable settlement.

• While it is normally advantageous to settle your case without going to trial, one important exception to that rule would be when your spouse is unwilling to offer a reasonable proposal for resolution of the issues involved.
• If your spouse is being unreasonable in their evaluation of the issues involved, their settlement offer is likely to reflect that evaluation and you should not feel forced into a settlement simply because it is usually wise to settle.
• If you find yourself in this situation, it is important to speak with an experienced Virginia divorce attorney about your case.  A good divorce lawyer can help you negotiate a fair and equitable resolution, or represent you at trial if settlement is not feasible.

The Virginia divorce attorneys at BoykoNapier can help you navigate through the murky road of settlement vs. litigation.  The lawyers at BoykoNapier handle all types of divorce and family law cases throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities.  Contact BoykoNapier today at (804) 658-3418, or via email.