Family Law

What Types of Divorces Typically go to Trial?

Learn which types of divorce cases most often end up in a courtroom battle.
By Aaron Thomas, Attorney
Published: Mar 31st, 2016

What Types of Divorces Typically Go To Trial?

More than 90 percent of divorce cases settle prior to trial—either by one spouse offering a settlement that the other accepts, or at mediation. Sometimes, however, the spouses simply can’t come to an agreement on an issue like child custody, child support, property division, or alimony, and they need the court to decide these issues for them. This article will explain what types of divorce cases couples try before a judge or jury.

When There’s a Major Disagreement on Custody

One type of case that often ends up in trial involves a major disagreement on custody or visitation. When there’s a dispute over a day or two of monthly visitation, parents can usually resolve it through negotiation and mediation. However, if one parent believes the other parent is unfit to have any visitation at all, that case is much more likely to go to trial. A parent who plays a role in the children’s lives is unlikely to simply give up sole custody to the other parent and will fight to maintain parental rights.

Another type of case that’s difficult to resolve before trial is when both parents want to be a child's primary custodian. Often, one parent has clearly been the child’s primary custodian during the course of the marriage, and the couple agrees to continue that arrangement. Sometimes, however, parents believe themselves to be better suited than their spouses to have the children the majority of the time, and if neither parent budges, they may find themselves in court.

Other times parents will agree on a general custodial or visitation schedule, but need a judge (or jury, in a small number of states) to decide which parent has the final say on major decisions like religion, education, medical treatment, or extracurricular activities. For example, having the final say on education can be very important when it makes the difference between a child going to private versus public school, or attending school much closer to one parent’s residence than the other’s.

When There’s a Major Disagreement on Finances

Many couples find themselves divorcing due in large part to disagreement on finances, so it’s no surprise that they’re unable to agree how to divide their assets and debts during the divorce case.

In “community property” states like California, courts presume that spouses equally own all assets and debts accumulated or earned during marriage. Even when spouses equally split their marital assets, however, there can still be disputes. The couple may disagree on whether certain property was obtained during the marriage or prior to the marriage. They may disagree on the value of a certain piece of property to be divided, like a piece of property that they don’t intend to sell. Both spouses may wish to keep a particular asset, such as a vacation home, or a recreational vehicle. Even if the spouses agree to split everything 50/50, they may still want a trial to determine some of these issues.

Most states are not community property states, but rather “equitable division” states. In equitable division states, the court must divide the marital estate “equitably” or fairly, but not necessarily equally. For example, a spouse who earned the majority of the income during the marriage may feel entitled to 60% or more of the marital estate, or a spouse may want to be compensated for the other spouse’s frivolous spending. Since what constitutes an equitable division is the subjective opinion of the judge or jury, spouses may decide to take their chances at trial to get the best financial deal.

Couples may also disagree about other financial issues, like alimony or child support that push them to a divorce trial.

When One Spouse Takes an Unreasonable Position

While there are many good faith reasons why a spouse may take a case to trial, unfortunately, many spouses end up in court due to their inability to see how an impartial third party would view their case.

If a spouse has outsized expectations coming into a case, it can be difficult to get to a more reasonable position and avoid a trial. For example, if the income that previously supported one household now must support two households, each spouse is likely to suffer a decrease in standard of living. A spouse who refuses to accept that basic point may go all the way to trial only to end up in the same, pre-divorce financial position, minus all the money wasted on attorney's fees and court costs.

It’s also possible that a spouse’s attorney gives an unreasonably rosy view of what to expect from the court, and then backs a client into an unsupportable position at trial. It’s important to try to look at your case from both sides to understand what a judge or jury is likely to do at trial: failure to do so may leave you on the losing side of your divorce.

If you have specific questions about whether your divorce case is likely to go to trial, you should contact a local family law attorney for advice.

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