Why Do Divorces End Up in Court (and How Can I Keep Mine Out)?

While most divorces don’t go to court, some do. Going to court adds time (and cost) to the process, and it also means that both spouses lose control over the outcome. As a result, going to court is rarely either spouse’s preferred approach, and most divorce lawyers will focus on finding ways to help their clients reach an amicable out-of-court resolution.

If that’s the case, then why do any divorces go to court at all?

The short answer is that sometimes divorcing spouses simply cannot find a way to come to terms. Their priorities overlap, and they aren’t willing to make the concessions that are necessary to move forward. As a result, they reach an impasse, and their only remaining option is to ask a judge to make a decision for them.

Although this is a possibility in any divorce, it is also a possibility that can typically be avoided. With this in mind, here is an overview of five types of disputes that can cause a divorce to end up in court—as well as an overview of some of the strategies that divorcing spouses can use to avoid litigation:

5 Issues That Can Cause a Divorce to End Up in Court

1. Disagreements Over Which Assets are Marital Property

In Illinois, divorcing spouses’ “marital” assets are subject to division during the divorce process, while their respective “separate” assets are not. While the date of marriage is generally the dividing line for determining whether an asset is separate or marital, there are a handful of exceptions. Additionally, divorcing spouses may disagree over when (or how) they acquired a particular asset; and, if the asset has significant financial or emotional value, this could potentially lead to a contentious dispute.

2. Disagreements Over How to Divide Marital Property

In addition to disagreements over what constitutes a marital asset, divorcing spouses can also reach impasses when trying to decide how to divide their marital property. While Illinois’s divorce laws require an “equitable” distribution (which may or may not be a 50-50 split), they don’t provide much guidance on what qualifies as “equitable” under any particular set of circumstances. Along with disagreements over percentages, disagreements related to individual assets can lead to contentious disputes as well.

3. Disputes Involving Alimony and Child Support

Disputes involving divorcing spouses’ financial rights and obligations can also lead to litigation in some cases. Most often, this happens when one spouse wants significantly more than the other spouse believes he or she should have to pay, or when one spouse accuses the other of hiding income (as discussed in greater detail below).

4. Disputes Involving Child Custody

Disputes involving child custody are often highly emotionally charged; and, as a result, in some cases neither spouse will be willing to compromise. If each spouse believes the other is wrong about what is best for their children, then it is possible that their dispute could eventually end up in court.

5. Accusations of Marital Fault or Hiding Assets or Income

In Illinois, evidence of “marital fault” is no longer required to file for divorce. However, alleging marital fault is still an option, and it can have advantages in some cases. With that said, alleging marital fault also significantly increases the risk of a divorce ending up in court.

Accusations of hiding assets or income can lead to litigation as well. At the beginning of the divorce process, both spouses are required to disclose their assets and income sources in court filings. If one spouse accuses the other of attempting to hide assets or income in order to protect them during the divorce process, while doing so may be necessary, it could also lead to litigation.

5 Strategies for Keeping Your Divorce Out of Court

1. Thoughtfully Consider Your Priorities in Advance

Resolving your divorce out of court inherently involves compromise. Neither spouse gets everything, and Illinois’s divorce laws focus on ensuring a fair outcome. With this in mind, when preparing for a divorce, it is important to thoughtfully consider your priorities in advance. Which of your marital assets matter most? Where are you willing to compromise? By going into your divorce with a plan, you can avoid the need to make emotionally-charged decisions during the process.

2. Prepare to Use Alternatives Such as Mediation and Collaborative Law

If you anticipate that you and your spouse will have trouble coming to terms, you should prepare to use alternatives such as mediation and collaborative law in advance. By implementing these options before disagreements start to spiral out of control, divorcing spouses will usually be able to reach a mutually agreeable resolution.

3. Be Willing to Consider Creative Resolutions

Oftentimes, creativity is the key to avoiding divorce litigation. There are several ways to resolve disagreements related to property distribution, financial support, and parenting time—including ways with which most divorcing spouses aren’t familiar. By working with your divorce lawyer to explore creative solutions, you can increase your chances of finding an agreeable path forward.

4. Set Realistic Expectations

In some cases, divorces end up in court because one or both spouses have unrealistic expectations. They think they are entitled to more than they really are. By setting realistic expectations at the outset, divorcing spouses can ensure that they aren’t making uninformed (and costly) decisions.

5. Don’t Let Small Disagreements Get Out of Hand

Finally, one of the most effective ways to keep a divorce out of court is to focus on resolving small disagreements before they get out of hand. As we’ve covered above, there are lots of ways that spouses can come to terms during the divorce process. By addressing disagreements proactively rather than letting them linger or letting them become emotionally charged, divorcing spouses can keep the process on track for an out-of-court resolution.

Schedule a Free Initial Divorce Consultation in Gurnee, IL

Do you have questions about getting divorced in Illinois? If so, we invite you to get in touch. Call 847-623-4002 or contact us online to arrange a free consultation with Gurnee, IL divorce lawyer Deanna J. Bowen.