Do You Really Want Your Day in Divorce Court?

The courtroom is packed. Lawyers are milling around the front of the room, waiting for the judge. Some ooze confidence. Most are stressed. A few look bored. Outside the low wooden gate that separates the lawyers and the judge from the rest of the world, nervous litigants pack the wooden benches – the “hard seats.” No one is happy. But then again, this is divorce court. No one is ever happy.

In spite of their pain, or maybe because of it, thousands of couples fill divorce courts and zoom courtrooms all across the country every single day. They are all there for one reason: to get divorced.

Or at least that’s what you might think.

As always, the truth is more complicated than that.

Why People Go to Divorce Court

If the only reason that people went to divorce court was to get divorced, you would be able to shoot a cannon down the hallway of most courthouses and not hit anyone. They would be that empty.

It's not that the people in divorce court don’t want to get divorced. Most do. It's just that getting divorced doesn't really take that long.

The actual hearing required to get divorced usually takes around 15 minutes. Even in the most complicated cases, an uncontested divorce hearing rarely takes more than an hour -- IF everything is agreed.

The problem is that in most cases, everything is NOT agreed. Or at least, it’s not agreed until the very end of the case.

(Even though upwards of 90% of all divorce cases ultimately settle, MOST divorce cases involve some amount of fighting during the divorce process.)

The truth is, people go to divorce court for a variety of reasons – most of which have nothing to do with actually ending their marriage.

Some people go to divorce court because they want to fight. They are angry and upset. Fighting in court will make their spouse angry and upset. Score!

Other people go to court because they think that’s just what you do when you get divorced. Or they go because their lawyer tells them they need to go.

Still other people go to divorce court because they want the chance to tell the judge their story. They don’t realize that, even if they do go to court, they will never be able to tell the judge their story. That's not how the divorce court system works.

But, no matter what anyone's reason is for going to court, everyone expects the same thing when they get there: Justice.

Yet the idea that you will find something called “justice” in divorce court is the biggest divorce myth there is.

The Truth About Divorce Court

Contrary to what most people think, divorce courts don’t necessarily exist to dispense “justice.”

They exist to divorce people. Period.

It’s not that you can’t get justice in divorce court. (Although there are those who would argue that that’s true.)

It’s just that “justice” means a lot of different things to different people.

For example, your idea of what “justice” is will usually be very different than your spouse’s idea of what justice is. Your divorce lawyers have their own ideas about justice. So does the judge.

Because of that, a decision that YOU think is just or fair, will likely feel like it’s very UN-just and unfair to your spouse.

Trying to find something that everyone agrees is “justice” is often impossible.

Of course, a lot of cynics – or people who have gotten the short end of the stick in an ugly divorce -- would say that there is no justice in divorce court. They will tell you that the court system is broken and that the judges are corrupt. I disagree.

Our court system is definitely overcrowded and underfunded. But, the reason that the divorce court system doesn’t hum along as perfectly as a jet engine on a 747 is not because the system is broken. It's because we are expecting a legal institution to solve family problems like a social service agency.

That's not what the legal system was designed to do.

It’s unrealistic to expect judges to sit like Solomon and provide “justice” to an endless parade of warring spouses who can’t agree on what time of day it is. While most judges do their best, at least one angry spouse is always going to feel like the judge’s decision was unfair.

The bottom line is that “justice,” like beauty, often lies in the eye of the beholder.

Do You Want Justice … or Do You Just Want to Win?

Another problem with looking for “justice” in divorce court is that most people who go there don’t necessarily want “justice.” What they want is THEIR version of justice.

In other words, they want to win.

But when one person wins, the other loses. That’s just the way the court system works. That’s also why staying OUT of court gives you significantly more opportunities to resolve your divorce issues in a way that allows both you AND your spouse to win.

When you use an out-of-court alternative to settle your divorce case (i.e. you use mediation or Collaborative Divorce) you give yourself the opportunity to create a win-win situation, rather than a win-lose, or a lose-lose situation. 

But What About “the Law?”

Many people believe that divorce law dictates everything that will happen in their divorce.

Yet, that’s another divorce myth.

Contrary to what most people think "the law" is not written in stone. The law changes all the time.

What’s more “the law” (especially divorce law) was actually designed to be flexible. It was written in a way that gives divorce judges a lot of discretion. That discretion allows them to make decisions not only based on the law, but also on their interpretation of the law.

The positive side of that judicial discretion is that it allows judges to make decisions that make sense in all kinds of different cases. It avoids the draconian results that can happen when the law is too rigid and strict.

The negative side of judicial discretion is that no matter how much you know “the law,” you can never be entirely sure how any judge will apply that law unless and until you go all the way to trial. That makes going to trial full of uncertainty … which is why going to trial should always be your last resort.

How to Get Justice in Your Divorce

If going to divorce court isn't about getting justice then why go to divorce court at all?

There are only two reasons:

• to finalize your divorce after you and your spouse have settled all of your issues (because only a judge can divorce you); or
• to get the judge to decide your case for you when you and your spouse can't resolve your divorce issues yourselves.

Going to court just to get the judge to sign off on your divorce is necessary. But it’s usually little more than a formality. It also leaves control of your life and your divorce in your hands.

Going to court to get the judge to decide your divorce issues places your life in the hands of a complete stranger. It robs you of any control over your family, your finances, or your future.

It will get you divorced. But it guarantees nothing about the terms of your divorce.

The bottom line is that, if you go to divorce court you want to be crystal clear about what you’re doing, and what you’re likely to get.

When you place your divorce in the hands of a judge, what you will ultimately get is a decision.

Whether that decision amounts to what you consider to be “justice,” however, is an open question.

If “justice” is what you’re looking for, the only way to get it is to resolve your divorce yourself.

Of course, if you do that, there will STILL probably be parts of your divorce settlement that seem grossly unfair to you. No one who goes through a divorce ever gets everything they want. But at least if you stay out of court you give yourself control over what you get.

Sometimes, in divorce, that’s really the best you can do.

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This article was first posted on January 19, 2017 and updated on February 17, 2023