Should I try to settle with my spouse or go to court and let a judge decide?
Once you have made formal arrangements to retain a divorce attorney, usually indicated by signing a fee agreement and paying any required retainers, your attorney will begin work on your legal matters. The legal claims related to divorce may include such matters as child custody, child support, postseparation support, alimony, and equitable distribution of marital property and debts. Depending on your circumstances, your attorney may contact your spouse’s attorney, or your spouse directly if he or she is not represented by an attorney, to determine whether or not some or all issues related to your separation and divorce may be settled without filing a lawsuit. Negotiating a settlement usually involves a series of offers and counter offers with both parties being willing to make certain compromises. If you and your spouse are able to reach an agreement regarding some or all issues related to your divorce, your agreement can be memorialized by entering into a valid written contract, commonly referred to as a separation agreement. Any issues which you and your spouse are unable to agree upon can be brought before the court for determination.
There are many advantages to entering into a separation agreement, or otherwise settling your matters outside of court, including those listed below.
Negotiating a settlement is almost always less expensive, less stressful, and less time-consuming than going to court.
You and your spouse can reach an agreement regarding financial matters and child related issues that best suits your needs based on your particular circumstances.
Reaching an agreement through informal negotiations or at mediation eliminates the uncertainty of going to court and letting a judge decide your case. If you go to court and let a judge decide, neither you nor your spouse will have any control over the outcome of the case.
A negotiated or mediated settlement fosters a spirit of cooperation which can help to reduce hostility and conflict. This may enable you and your spouse to preserve certain aspects of your relationship which can be especially important if you are the parents of a minor child.
A separation agreement provides a greater degree of privacy and it can remain private and confidential unless it is merged into a judgment of divorce. Legal documents filed in a divorce related case are a matter of public record.
You and your spouse can agree to things in a separation agreement or a private contract that a judge does not have the statutory authority to impose. For example, parties can agree that one or both of them will pay the college expenses for their adult child, that the noncustodial parent may claim the dependency exemption of the minor child for income tax purposes, or that an obligation to pay child support or alimony will be secured by a life insurance policy insuring the life of the supporting spouse or parent.
Although settling outside of court may be your preferred method of resolving your family related legal issues, there are a number of reasons your attorney may recommend that you file a lawsuit (known as a “complaint”), including the following:
the opposing party (your estranged spouse) is not negotiating in good faith, e.g. is making unreasonable demands, refusing to voluntarily provide pertinent information and documents, or not responding to settlement proposals;
to preserve the court’s jurisdiction (authority over your case);
if there has been domestic violence or there are concerns for your safety; or
if it is necessary to obtain a restraining order or an emergency child custody order.
Filing a lawsuit does not mean that your case will have to go to trial. In fact, the vast majority of family related legal matters in Buncombe County, North Carolina are settled outside of court. Both before and after your lawsuit has been filed, you and your attorney can continue to explore settlement possibilities through informal negotiations or by attending mediation.
Entering into a separation agreement has serious legal consequences that may impact your life for many years into the future, particularly as it may relate to paying or receiving child support or alimony, or the division of certain assets such as pension and retirement accounts. Therefore, it is imperative that you have an experienced and competent family law attorney representing you in negotiations, offering qualified legal guidance, and advocating on your behalf. Moreover, it is crucial that you fully understand the terms and conditions of any agreement or legal document that you are signing.
When you are facing the uncertainty of divorce, the family law attorneys at Siemens Family Law Group can help you understand your options, and legal rights and obligations. Whether your case is resolved through settlement negotiations or litigation, you can count on us to provide quality legal services that keeps your best interests at heart at all times. Our firm’s commitment to professionalism and client satisfaction has earned us an exceptional reputation as one of the preeminent family law firms in Asheville and the Western North Carolina area.
This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.