Is a trial likely in your case?
There are some cases where a trial is inevitable. There are a number of reasons why. One party or the other may be incapable or unwilling to negotiate in good faith. The proposed settlement requests of one party may be so unreasonable that you cannot in good faith, agree to accept them. Sometimes the parties’ differences in opinion on important issues are so extreme, that no compromise is possible. In some cases, the stakes are so high, that neither party can afford to budge in their position. In situations such as this, a Judge must decide the issues in dispute.
Statistically, divorce trials in Michigan are extremely rare. Most cases are settled by the parties. There are many reasons. One is that throughout the process, there are mechanisms to encourage settlement. If custody, child support, or in some cases, the right to spousal support, is in dispute, the court will likely refer the parties to the Friend of the Court. The Friend of the Court is a branch of the legal system designed to investigate facts and make recommendations to the court on certain issues. A case worker (typically someone with mental health credentials when custody or parenting time is involved), will meet with the parties (after you have been properly prepared by your attorney), review materials submitted by the parties and their attorneys, after which they will make a written recommendation to the Judge and the parties attorneys. Either party can accept or reject the recommendation.
Besides mediation, prior to conducting a trial, many courts will schedule settlement conferences with the attorneys to try to resolve the case. This may take place in open court, but more often than not, is done in the Judge’s chambers (their private office), where candid discussions of the matters in dispute occur between the judge and the attorneys. This too may result in settlement.
There are other reasons why trials don’t often occur. A trial diminishes a party’s ability to control the settlement terms. While a well prepared case can help determine the trials’ outcome, it cannot guarantee it. Instead of something mutually agreeable, a judge may come back with decisions on issues that neither party feels is appropriate. Where a case is resolved through settlement, while the Consent Judgment may not determine a “winner” or “loser” on particular issues, at least the final terms of the Judgment are something that both parties can live with. Trials often require expert witnesses, and can be very lengthy and extremely costly, particularly if custody or complex issues regarding the division of valuable assets are at stake. Please see Carlo’s article on Expert Witnesses for further information (hyperlink)
Finally, a trial can cause irreparable harm to the parties emotionally, financially and to the parties’ children. After battling it out in court, it is often hard for the parties to deal with each other regarding the children at family, educational, or social events at which they must interact.
As we said at the beginning of this section, despite the difficulties a trial may present, you may have no other choice. As with all the steps that have preceded the decision whether or not to go to trial, having an experienced family law attorney at your side is crucial to you obtaining your legitimate objectives.