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Why Family Law Cases Settle

Jul 21, 2015 | Written by: William W. Goodwin, Jr., Esq. |

When members of the public think about divorce cases, they often visualize dramatic trials with testimony describing love affairs and other tawdry details. The reality is that this seldom, if ever, happens. There are two separate, but somewhat related, reasons for this phenomenon.

First, New Jersey, like virtually all other states, is a "no-fault" jurisdiction. Although there are grounds for divorce such as adultery, desertion and extreme cruelty, almost all cases are filed under the "no fault" cause of action known as Irreconcilable Differences. The reason for this is because fault does not matter. In other words, except in extraordinary circumstances, one party will not obtain a more favorable result (for example, a greater share of the marital assets, or more support) simply because the other party caused the breakup of the marriage. Thus, the substantial majority of litigants rightly conclude "no fault" is right for them.

The second reason why dramatic trials are so rare is even more basic…trials in general seldom occur. Stated differently, more than 95% of all divorce cases filed result in settlements. The substantial majority settle before a trial is scheduled. Many settle on the eve of trial and some settle in the midst of trial. There are ample explanations for this.

First, trials are extremely expensive. The preparation work itself can demand 30-50 hours of a lawyer’s time. One day of trial, including preparation, can "cost" 8-10 hours of billable time. Trials are constantly interrupted by other pressing matters in the courtroom, yet clients have to pay their lawyers to sit around with them until the Judge again becomes available. Even a relatively simple case can take 5-7 full days of trial, and most take many more. Do the arithmetic and you can readily see how financially daunting a trial can become.

Second, trials take a long time. In Hunterdon County, if you really want to go to trial, you will have to wait at least 2 years from when you file. In many cases, that stretches to 3 or even 4 years. The trial itself, because of the interruptions mentioned above, can last many months and, in some cases, more than a year. Then there is the wait for the Judge's decision, which can be another 4-6 months. Again, do the arithmetic and consider whether you are willing to "spend" the time and money on such a path.

Finally, and perhaps most important, a trial represents, among other things, the surrendering of one's right to any control over the outcome. The parties have essentially handed over control of their lives to a stranger. Rarely, if ever, can a Judge craft a resolution that satisfies either party.

Fortunately, the court system has developed many programs to help limit the number of divorce trials. These include Early Settlement Panels, mediation, and in-court Intensive Settlement Conferences. In sum, anyone contemplating a divorce should prioritize finding a way to settle his or her issues, and any lawyer who does not so counsel his or her clients is doing them a disservice.


William W. Goodwin, Jr., Esq. is certified by the NJ Supreme Court as a Matrimonial Attorney. He is also qualified as a Mediator in the field of Family Law under the New Jersey Court rules, and he is trained in Collaborative Divorce. Contact Mr. Goodwin at 908-735-5161 or via email.