There may come a time in the divorce process when a couple must choose between negotiation and litigation. Most family law attorneys would tell you it is always better to resolve a divorce amicably. Keeping your case out of court has many benefits for you in both the short and long term. Not only are divorce trials expensive, but they can keep you from being able to get the fresh start that you need. In addition, a contested divorce could lead to lasting tension and bitterness between the spouses, which is the last thing you want, especially when you need to co-parent.
Although you should aim to reach a settlement agreement outside of court, the situation you’re in with your spouse may give you no choice but to litigate your divorce. That’s not necessarily a bad thing.
After all, each spouse has the right to file a lawsuit in court. Even if you want to negotiate a settlement, you cannot control what the other spouse does during the divorce process, such as making it impossible for you to negotiate a settlement. You can choose at any point during the process to file your own lawsuit. This is not a choice you should make lightly given the ramifications of a divorce trial. In consultation with your family law lawyer, you will decide whether to continue negotiating or move toward a hearing and/or trial.
Here are some reasons why you may want to consider litigating your divorce instead of settling it outside of court.
1. The Other Spouse May Not Be Reasonable
As much as you may want to negotiate, it takes two for the process to work. There is only so much you can do to help move your case toward an amicable resolution. You need a willing partner in the negotiations.
You cannot be the only party trying to negotiate. Alternatively, you may be the only person who is negotiating in good faith. The other spouse may be negotiating merely as a ploy to buy time or wear you down and sap your will. You may be making and offering compromises while the other spouse may be yielding nothing.
There is only so long you should allow negotiations to drag on before taking action. There comes a time you may need to cut your losses and halt negotiations to take your case to court. Filing a lawsuit is a way to show the other spouse that you are serious about moving forward and bringing finality to the divorce process.
2. There Are Fault Grounds for the Divorce
Usually, community property is divided equally in a Texas divorce. However, if there is a fault ground for the divorce, one spouse may seek a greater share of the community property. One common fault ground for a divorce is adultery. The spouse who is seeking a divorce must meet their burden of proof to obtain a fault-based divorce. The other spouse may contest the allegations, and it would then be up to a fact finder to determine whether a spouse was at fault in the divorce. A spouse will rarely admit to being at fault for the divorce because they know it will cost them money.
3. There Are Disputes Over the Character and Valuation of Community Property
Although the default rule in Texas is that all property obtained during the marriage is community property, there are often disputes over the value of the marital assets. For example, if one spouse brought property into the marriage, they could keep the property itself, although the increase in the value of the property would be subject to division.
The spouses may not agree about what is separate property and what is community property. They may also disagree about the valuation of assets. 50/50 is not as straightforward as it may seem. Your spouse may retain their own valuation expert who has their own opinion about the values of certain assets. If the spouses cannot bridge the gaps in their positions, they may need to litigate, and a judge would decide the issue. Litigation is more common when the spouses have a high net worth because there tend to be more assets at issue in a high-net-worth divorce.
4. The Other Spouse is Concealing Assets
Each spouse must file a disclosure that details the property they hold. Your family law attorney may have requested information about investment accounts and property from the other spouse at the outset of the divorce negotiation. The listing might have been incomplete based on your knowledge of their assets. Or, your lawyer may have run an asset check on the other spouse and discovered that there are accounts and property they may be hiding.
You may need to go through the discovery process, as overseen by the court, to get the full financial picture and complete information from the other spouse. If the other spouse is found to have concealed and hidden assets, they could be penalized and punished by the court.
5. The Prenuptial Agreement May Not Be Enforceable
You and your soon-to-be former spouse may have signed a prenuptial agreement that provides the terms of the divorce in advance. However, you may now realize that an issue existed when you signed the prenuptial agreement that could render it invalid now. Whether or not you are able to invalidate a prenuptial agreement could determine whether you get half of the community property or receive less, as per the terms of the agreement. If you are challenging the viability of a prenup, you would need to argue that it should not be enforced on specific grounds, such as the fact that it was grossly unbalanced or that the other spouse did not sufficiently describe their assets to you before you signed the agreement.
Bonus Reason: You Need to Do It for the Children
In any Texas divorce case, the same consideration applies to any matter that involves children. The court will use the “best interests of the child” test to determine how to rule on an issue. You may have a fundamentally different vision of what is in the best interests of your child, and you may not be able to agree with the other spouse about it. For example, you may think it is better for your children to spend more time with you, while the other parent wants you to have less visitation.
You have the right to take your case to court and let the judge decide the matter. A judge would use a flexible test that considers many factors before reaching their decision. There are some family matters you simply cannot compromise on, and children – and access to them and how they are to be raised – may be one of them. Even though you may be forced to litigate, you should try to reach an agreement with the other parent on as many points at issue as possible. Child custody and child support are often the most contentious aspects of a divorce.
The decision to litigate your case is a serious one that you cannot afford to take lightly. You should work with an experienced divorce attorney to review the pros and cons of your particular situation. They will then give you their best professional opinion about the appropriate course of action. There are times when you need to do what you have to do to secure your rights, and sometimes that means going to court.
If you do go to trial, you can expect it to be a difficult process; however, there may be no way around litigation. You should not reach a settlement agreement outside of court just for the sake of doing so. You may end up costing yourself a considerable amount of money and surrendering valuable legal rights.
The experienced divorce lawyers at Terry & Roberts take a practical approach to every family law case. We commit to providing you with an objective and commonsense opinion about what you are facing. If you have to go to court, we are gloves-off litigators who know our way around the courtroom. Contact us today to speak with an experienced divorce attorney.