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Not every case needs to go to court: How to know when you need litigation

Not every case needs to go to court: How to know when you need litigation

Having to fight with your ex in a courtroom during your divorce can make things more stressful and more expensive. While some cases may end in trial, not every divorce needs to go to court. Here is how to know when you need litigation for your divorce.

Wisconsin is a No-Fault Divorce State

When a marriage ends in divorce, one or both spouses may blame each other for the relationship ending. Having an identifiable event or act or like an affair or abusive behavior to point at can make it seem easier to assign fault. Even when a marriage fails for less tangible reasons, spouses may think the other person caused the divorce. Although you may be in the “right” and your ex is to “blame,” that doesn't matter for the purposes of getting a divorce. That's because Wisconsin is a no-fault divorce state. This means that neither party has to plead or prove that the other did anything wrong in order for the court to grant a divorce. All that is required is for the court to find that the marriage is “irretrievably broken” and there is no chance for reconciliation. So, if your goal in pursuing litigation was so you could go to court to tell the judge why your ex is responsible for the divorce, litigation is not going to help you. The judge may consider some evidence relevant (like if your spouse spent money being unfaithful, you might be entitled to get credit for that spending), but fault is not required for a Wisconsin divorce and generally isn’t considered relevant. Divorce mediation may be more useful in this circumstance as it would allow you to work with a trained mediator to negotiate a settlement with your ex.

Some Issues are Not Going to Change in a Courtroom

As you go through your divorce, it's essential to work with your divorce attorney and operate from a realistic perspective. For example, you may believe you should get all of the marital assets and sole custody and primary placement of your children. However, Wisconsin law won't support these results outside of extreme circumstances. This is because Wisconsin is a community property state, meaning that, with certain limited exceptions, what a married couple earns during the marriage belongs to them equally. Additionally, the law also favors joint legal custody and children having frequent contact with both parents. If you want to litigate because you expect unrealistic results that the law does not favor, you are not likely to be successful. It would be better to work with your attorney to better understand what the law will allow and negotiate outside of litigation.

There Are Reasons Why Most Cases Settle Outside of Court

The majority of divorce cases never make it to trial for several reasons.

  • One is flexibility. When parties settle, they have the freedom and flexibility to devise their own agreements according to what works for them, rather than being confined to the law's parameters.
  • Another reason is risk. Going into court leaves open the possibility of the judge imposing conditions or making decisions that the parties don't want.
  • Expense is another. It is far more costly to litigate a case than to settle outside of court.
  • Lastly, stress can be a factor. Going through divorce litigation can be emotionally taxing and difficult. Many parties opt to negotiate a reasonable settlement and move on rather than subject themselves to further stress.

When parties consider all or some of these factors, they may find that litigation is not the best path for their case.

Litigation May be Inevitable

There are several reasons to avoid litigation, but some cases may have to go to trial. This may be because one or both parties refuse to negotiate or is unreasonable and uncooperative. Some cases, such as those involving child custody and placement, can involve high conflict to the point that a judge will have to become involved to control the parties. Other times, one side may believe the other is hiding assets or being dishonest. If you think your case is bound for court, you should consult with a Wisconsin family law attorney as soon as possible to discuss the issues and consider your options.

Consult with an Experienced Wisconsin Family Law Attorney

Attorney and mediator Karyn Youso of First Look Family Law has extensive experience helping clients evaluate their circumstances and consider their Wisconsin divorce choices. She understands the complexities of life before, during, and after divorce and can help you access the resources you need at every stage. Come in, and let's take a "first look" at your situation so you can figure out your next steps.

Please call our office today to set up a phone or Zoom consultation.