Should You Settle or Go to Trial?

In the event you need to go to trial, trust our team of expert attorneys in Manhattan and Brooklyn to help win your case.

After the process of discovery has been completed to everyone’s satisfaction, you will need to decide whether you think you can work out your issues outside of the courtroom. If it does not seem possible, you and your spouse will likely have to go to trial. This is when having a divorce lawyer will be especially convenient, since you will need someone to represent you if you want the best results. By this point, you will likely have already been through the preliminary conference, during which your lawyer will have discussed the case with the judge. At that time, the judge will have taken all the details into consideration, including anything said by your attorney and your spouse’s attorney. During the meeting, you should have been told by the judge what he or she would recommend, and how he or she would likely rule.
Depending on the judge’s likely ruling, you can decide whether to go to trial. Be sure to consider both what the judge has said and what your lawyer recommends based on the details of the case. You should also consider which issues you and your spouse can work out with a compromise, without going to trial.


If you want to negotiate with your spouse, you need to be willing to take the time to bargain. You also need to be realistic at this point. Otherwise, you could end up with a costly battle that takes years to solve, and wastes your time in the end when you still don’t get everything you asked for. In our experience, you should only attempt to settle within 30 days. After that point, you should consider going to trial if your spouse is not willing to compromise.
That being said, you should go into the negotiations willing to make some trades. For example, if you want the car and your spouse wants the boat or RV that you share, you should be willing to trade one for the other. It is unlikely that you will get both, unless of course you are willing to give up the house in exchange for all your vehicles. Insisting on getting it all, especially if you are just trying to be spiteful, can end up in a time-consuming, costly battle.
You need to be prepared for your spouse to pull out all the stops to try to get what he or she wants. For example, your spouse may do the following during negotiations:

  • Make personal attacks on you
  • Threaten to keep full custody of the children
  • Threaten to go after all of your assets
  • Suddenly increase his or her demands
  • Come up with guilt trips
  • Lie or withhold pertinent information

Separation Agreement
Once you and your spouse can agree on which assets each of you gets, you will both have to sign a Separation Agreement. This is a document that not only states which assets each person receives, but also which responsibilities, such as debts, each of you gets. If you have children together, the document will state who gets custody, and it will also discuss visitation rights when applicable. Child support will be addressed in the agreement, as well.
The document will then be filed in court, which makes it a court order that needs to be followed by both of you. Of course, if you up not able to agree with your spouse outside of court, you should plan on going to trial. Just know that it can take months to get a final decision once you go to court, and there is no guarantee that it will be in your favor.


Remember that either you or your spouse will lose in the court room, and there is no way to know which one of you it will be. That means you have 50/50 odds, which is not typically a good gamble. That’s why you are advised to do everything you can to come to an agreement.
In addition, keep in mind that the judge who will make the decision does not know you or your spouse very well. In the end, this person will decide on important details that will seriously affect your life, either in a good or bad way. The judge does not know which parent is best for your children when it comes to custody, and he or she does not really know which person deserves the house, retirement funds, or other assets. But when you go to court, this person will be left in charge of these decisions, and the outcome could very well be wrong. This is the chance you take when you go to trial during your divorce.


We recommend that you at least attempt to negotiate with your spouse outside of court. It may be less expensive and less time-consuming for you, and the results you get will likely be more in your favor since you can compromise. There is no compromising in court when the judge makes a decision.
However, we understand that some people are unwilling to settle, and your spouse may be one of them. If nothing you say can allow you to compromise with your spouse, and you are not willing to lose your children or assets, know that we will be behind you every step of the way when you go to trial.
We recommend that you move the case toward the courtroom after 30 days of trying to settle out of court. This is because if your spouse has not been able to compromise with you by then, he or she probably will not do so anytime soon. Rather than waste months trying to settle in vain, we can prepare you for trial.
Fortunately, we are quite comfortable in the courtroom, and we are confident that we can get you the results you desire. That’s the advantage you have when you hire Brian D. Perskin & Associates P.C. 

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For more information about how our office can help with your divorce matter, please contact a New York divorce attorney from our firm.

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