Going to Court v/s Going to Trial, How To Decide?

If you and your spouse choose to separate, there are issues that you must address immediately. There are many different issues that need to be resolved when people get divorced. If you can both agree on all of the issues, you do not need to go to court and can enter into a separation agreement.

Like all domestic contracts, your separation agreement must be in writing, signed by you both, and witnessed in order to be enforceable. You should go to court if you can’t resolve the issues on your own.

Avoid Trial, Go to Court

The public overestimates the number of separation cases that actually go to trial. Separation trials are time-consuming and can get extremely expensive depending on the number of issues that need to be resolved. This is why you should avoid trial, if possible.

“Going to court” sounds like a different way to say “going to trial”, but they are quite different. Since most contested separation cases require filing paperwork with the court, you likely will not be able to avoid going to court.

For example, if parties are unable to agree on the issues, they must have a settlement conference before a judge can attempt to resolve them. Only if they are unsuccessful during the settlement conference, can they go to trial. There are a lot of steps to go through before going on trial.



Advantages of Going to Court

  1. A case conference is probably the first time you and the other party speak to a judge about the issues in your case.
  2. If you and your spouse have not sorted out your issues after one or more case conferences, a judge may schedule a settlement conference.
  3. A trial management conference is scheduled only if you cannot resolve your issues in the previous conferences and your case must go to trial. It will help you both get ready for trial and provide you with one final attempt to settle your case.
  4. Conferences allow the judge to make sure you and your spouse have provided each other and the court with the information required to move your case forward.
  5. Settlement conferences have the potential to resolve separation issues faster and cheaper than a trial.
  6. Going to court is a less adversarial process than a trial.
  7. You will receive the recommendation of a judge which may help you resolve your issues, or guide you towards an alternative dispute resolution process.
  8. If you do come to an agreement, the judge can finalize it in a court order which is as official as the orders issued at trial.
  9. In settlement conferences, the judge’s recommendations are not binding. You won’t need to go through the process of filing an appeal if you do not agree with them.
  10. Everything you say in a settlement conference is confidential and cannot be used in a later court proceeding.
  11. Financial disclosure is required by you and your spouse.
  12. Spouses should attend a Mandatory Information Program before they go to court on separation issues. The MIP provides relevant information and encourages the parties to settle.


Advantages of Going to Trial

  1. A court trial may be necessary if you and your spouse are unable to come to an agreement.
  2. You can present evidence and call witnesses to testify on your behalf in a trial.
  3. Financial disclosure is required by you and your spouse.
  4. If a case is not resolved, either party can make an offer to settle during the hearing. Note: you cannot show the trial judge your offer to settle until after they have made their decision.
  5. The judge will decide the case for you if you and your spouse are unable to compromise on one or more of the issues.
  6. If the judge rules in your favour, it is binding upon your spouse.
  7. If the judge rules in your favour, your spouse will have to officially file an appeal. The time, costs, and effort may deter them from undertaking the process.

It is important to speak to a lawyer before choosing which path is the right option for you. A divorce lawyer in Toronto can help you with alternatives to court and offer different perspectives on your options.

For more information, contact our Mississauga divorce lawyers and we will discuss what you need to know in person. You can reach our office at 905-366-0202 or contact us through our website here.

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