Some divorcing spouses imagine that a day in court is a day of vindication, but it is not. Judges have heard it all before, and rarely does the court recoil in righteous indignation when one side or the other recounts the wrongs a spouse visited on the marriage. That’s one reason to avoid litigation. The other is cost. Litigation is war, and like war it bankrupts the belligerents.
Only a tiny fraction of all divorce cases ever go to court, and with good reason. According to one source, in states with equitable distribution of assets (41 of the 50), each of the parties usually receives about half the assets, and it is very unusual for one party to receive more than 60 percent. “Given that he legal fees for a litigated divorce often exceed $160,000 total for both parties, and assuming that a skilled litigator might be able to get an extra 2 percent of marital assets awarded to his/her client, a litigated divorce make economic sense only if total marital assets are more than four million dollars,” according to Ronald B. Standler, the author of “Litigated Divorce in the USA As a Waste of Assets.”
Equitable distribution means fair, not necessarily mean half or even equal. Equitable distribution considers the financial situation of each spouse. This routine is more flexible, and in many jurisdictions judges exercise discretion in dividing the marital pie. For example, in one common situation, a court may award the custodial mother the marital home and give her husband cash assets even when that distribution is not equal. Courts can use equitable distribution to take into account liabilities that may accrue to one partner by virtue of the length of the marriage. For example, a court may favor a stay at home mother whose long years out of the workforce have made her employment problematic.
In most contested cases, lawyers continue to negotiate in search of a settlement even as they prepare for the courtroom battle because the preparations are part of the jockeying for position.
Moreover, aside from the staggering cost of a court battle, reputable lawyers know that couples who end their marriage in the courtroom part ways with a lasting hatred for one another than makes parenting after the divorce all but impossible.