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. These issues include division of assets, the matrimonial home, child support, spousal support, custody, the access schedule, who will make what decisions for the children…etc. 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. If you both cannot resolve the issues on your own, you may be asking whether you should go to court or go to trial?

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? Another way to think about it is that, in some ways, going to court is a prerequisite to going to 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. If the parties contest separation issues, each spouse must attend a Mandatory Information Program (MIP) before beginning a proceeding in family court. The MIP provides relevant information and encourages the parties to settle.

Advantages of Going to Trial

  1. If you and your spouse are unable to compromise, a trial will allow you both to present your case before a judge.
  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. At any point during your court case, you can make an offer to settle which states what you are willing to agree to in order to resolve your case. 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 between you (child support, property division, spousal support).
  6. If the judge rules in your favour, it is binding upon your spouse. (If they rule against you, that is binding as well.)
  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 lawyer is in the best position to advise you of your options, as well as help you consider out-of-court alternative dispute resolution methods that were not discussed above.

If you are looking for more information, do not hesitate to contact us and our specialist Family Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.

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