Should You Litigate or Negotiate Your Divorce?

Two adults sit at one end of a table while a third adult reads from a paper on the other end of the table.

Many estranged New Jersey couples may look for a quick resolution to settle their divorce while others may find it difficult to even sit in the same room together. Of course, divorce is not only an emotional process but also one of the most impactful financial events in a person's life. The question of whether to pursue a litigation-based approach or to try and arrive at a mutually acceptable settlement can depend on each couple's unique circumstances. Your New Jersey divorce lawyer can craft a strategy to help you protect your interests and achieve a fair outcome.

Should You Negotiate Your Divorce Settlement?

There are a number of considerations to keep in mind when deciding whether to choose between litigation and negotiations. In some cases, you and your divorce attorney may have to pursue aspects of both strategies. When both parties are motivated to reach a settlement, negotiation may seem to be an obvious choice, and when the two parties have a very contentious relationship, litigation may be necessary. This may be especially true when there is no trust between the parties or when a serious dispute emerges over the valuation or division of a specific asset.

Non-financial aspects of a New Jersey divorce, like child custody issues, can also prove challenging on many occasions. However, many family court judges will encourage divorcing spouses and their respective family lawyers to pursue a negotiated settlement unless they are unable to do so. There are several reasons why negotiations may be a preferable alternative to going to court.

Settling a Divorce More Quickly

In many cases, a negotiated approach may help couples to reach a faster divorce. Both spouses and their family law attorneys may meet to reach an agreement on key issues like child custody, asset division, and spousal support. Pursuing negotiations does not mean that the couple finds it easy to get along or that both parties are close together on their preferred outcomes in the divorce. A divorce attorney may play a major role in presenting proposals to the other party in order to minimize confrontation.

When you go to trial, it may take a year or more to finish, depending on the scheduling available on the New Jersey family court calendar. There may be substantial waiting periods between each appearance, and clients and their family law attorneys may spend a substantial amount of additional time preparing for trial. Each spouse will also need to be present at each court appearance.

When people are able to negotiate a divorce settlement in New Jersey, they can finalize the divorce more quickly. When the family court only needs to approve a negotiated agreement, there are fewer delays in waiting for the court calendar to free up.

Of course, while the majority of divorcing spouses may be able to finalize their cases more quickly through negotiations, this is not the case for every person. If you know that negotiations will not go anywhere, you may spend more time scheduling negotiations than you would have if you had pursued litigation from the beginning. In the unlikely event that negotiations are not fruitful, you may eventually wind up litigating the divorce at trial, there may not be a reason to pursue fruitless negotiations.

Financial and Emotional Considerations

Of course, the question of time is also a financial issue. When you and your divorce attorney spend more time preparing for trial and presenting your case in the courtroom, litigation is a more expensive path than negotiations in most cases. Except in the aforementioned cases where you can expect to wind up in litigation at the end anyway, negotiations will likely be less costly than a litigated divorce in front of a family court judge.

There are also emotional considerations to keep in mind. The lengthier the process and the more expensive the costs associated with the divorce, the more stressful the process is likely to be for all parties. When the divorcing spouses share children, the negotiations process can be challenging but also an important step toward establishing an agreed-upon co-parenting relationship. The adversarial approach inherent in litigation may make it less likely that the parties can reach a mutually agreeable settlement outside of a judge's ruling.


Family law attorneys will often advise their clients that divorce litigation is not a path to emotional catharsis. People who feel they have been wronged in the divorce may want to have their day in court and speak to their desires for the outcome of the case during the trial. However, courts render their decision based on legal principles and specific facts, rather than the emotional effect of the end of the marriage for each party. Pursuing litigation for emotional closure is unlikely to provide the benefits sought and may even make it more difficult to obtain. Litigation can be a worthwhile choice for many divorcing spouses, but it is for its practical role rather than its cathartic effect.

When Is Litigation a Good Choice?

Litigation is a good choice when spouses already have good reason to believe that negotiations will be fruitless and will only add time and cost to the process. One case where litigation may be necessary is when one spouse has solid reasons to believe that the other spouse is hiding assets. If a spouse is refusing to bring marital assets to the divorce negotiating table, negotiations may fail and require litigation and expert witnesses to address the issue. Litigation is needed to seek court orders and compel disclosure. In these cases, the added time and costs of litigation can have a significant payoff in the final outcome. Litigation can also provide greater certainty to the timetable and may also be a necessary response to an aggressive approach from the other party and their family lawyer.

When parties cannot cooperate and their divorce lawyers cannot facilitate an amicable meeting, litigation may be necessary. In addition, if one party is not willing to negotiate or compromise at all, there may be no choice other than to move the case to court. There are other unusual circumstances that may make litigation a better choice, including some international divorces or other potentially complex legal issues.

Seeking a Fair Outcome in Negotiations

When planning to pursue divorce negotiations in New Jersey, there are several factors that can help divorcing spouses to successfully pursue a fair and reasonable outcome. The great majority of divorces are settled outside of trial with an agreement settled by the parties as negotiated by their respective divorce lawyers.

Divorcing spouses can benefit from preparing for negotiations and understanding their case information statements, containing assets, liabilities, and itemized budgets. By understanding the financial background involved, each spouse is better prepared to advance their own interests. Negotiating a successful settlement requires a thorough review and understanding of marital finances, including debts as well as assets.

It is also important for divorcing spouses to expect realistic outcomes and be willing to compromise in order to achieve them. Neither party can expect to receive all of their desired results, but prioritizing key issues can help to determine which ones are most important to each spouse.

 

Jennifer Lawrence, Lawrence Law
Author's Bio:

Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney, Jeralyn Lawrence represents clients with matrimonial and family law needs throughout New Jersey. Jeralyn is President-Elect of the New Jersey State Bar Association and President of the American Academy of Matrimonial Lawyers New Jersey Chapter (AAML-NJ).  Jeralyn is also certified as a Family Law Arbitrator by the AAML and an Accredited Mediator and Collaborative Law Attorney.

Jeralyn is a frequent speaker and panelist at divorce and family law programs and seminars and is a member of several legal and charitable organization committees.  See her complete biography here.

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