5 Reasons To Keep Your Divorce Out of Court: Beware The Stranger in Black Robes

There are lots of reasons to keep your case out of court.  It is less stressful, more likely to result in a longer lasting agreement, and potentially will save a lot of money if you and your soon to be ex can mediate instead of litigate your case.  Nowadays you may even be able to mediate online. On the other hand, if you have an impossible or unengaged spouse, court litigation may be your only option.  Before deciding to run into court, evaluate whether that is really your only option. 

In the early 2000s I worked in the New York State Supreme Court for a divorce court judge (oddly enough called “matrimonial” court, not “divorce” court).    Judge Sunshine was famous for saying “You don’t want this stranger in black robes deciding your life.” And, he was right. Here’s why.

1. Going to court puts your future in the hands of a stranger.  

When you abdicate decision making authority over your personal life, you’re no longer in charge of your own destiny.  The judge may listen and do the best they can to come up with something fair. But at the end of the day, only you know what works for your family.  In fact, after hearing all the arguments, often a judge gently encourages the parties to work together to reach a resolution.  Other than satisfying the desire to have their “day in court,” the legal-judicial process has serious limitations. 

2.   Limits to What the Judge Hears:

The judge is only supposed to listen to what is legally relevant.  Issues that may feel or even be very important to you often are inadmissible or otherwise inappropriate for the courtroom.  Leaving intimate co-parenting and other  family decisions in the hands of the court is of course your right— and if you do so hopefully the judge will make a well-reasoned decision with the information presented. But there is certainly no guarantee either of you will be pleased with the outcome.

3.   Don’t Details Matter?……Well, yes and no.  

There may be details about your family life that are hugely important to you, but which the court will not notice or care about. For instance, regardless of how much you and your kids love “pizza Friday” at your house, there is a good chance that it may take a back seat in consideration of bigger parenting or custodial issues and never make it into the final court-issued judgment. There is no substitute for your  intimate knowledge of the facts of your life, and what matters most. These details are much more likely to end up in any agreement that you and your spouse would fashion than it is to appear in a judicially issued order. Even if admissible, some items may be legally irrelevant in the eyes of a court regardless of how much they matter to you.  

4.     Judges are Just People

The judge has no magical powers. More often than not, there are a variety of ways a case may be decided. Remember, judges are just people. While the laws may be reasonably clear, often there is a degree of “judicial discretion” allowed. This means that the judges’ opinions, unique life experiences, and personal points of view all go into their interpretation of the law as it applies to the facts of your case. Even when there are strict guidelines and formulas, you may find you don’t agree with your judge’s decision. Most of the time, especially when it comes to family law, there is no one objectively “right” outcome. Interpretation may differ from judge to judge even in the same jurisdiction.  The law is interpreted based on the facts presented, through the judge’s personal filter–their background, experiences, and even their mood that day. The judge will do their best, but in most cases, you and your ex know your life the best and can likely arrive at an agreement best suited for you and your family. 

5.   Court wastes time and money

The average divorce costs $15,000-$20,000 per person. And mediation is likely going to cost you a fraction of that.  Going to court means you will be on someone else’s schedule and it could take years of aggravation before you reach resolution.  It may mean you’ll miss days of work or other usual activities. And, you will be paying your lawyer for many hours of sitting around waiting for your case to be called. Once you’re in front of the judge, you may find that they hear your case for only a few minutes before making a decision that will impact your everyday life for years to come. The process can be maddening. 

A winning solution is one that is arrived at by the parties most affected, working together.  It’s one where neither of you feels totally like a “winner” or “loser.” It will lie somewhere in the space between.  And, only you two know where that space is. An agreement arrived at outside of court is more likely to stand the test of time.  

Twenty five years of practicing in and out of court in urban, rural and suburban locations, I keep coming back to the judge I worked for in New York, and his constant refrain about not having a black-robed stranger “deciding their lives.”  He said this so much that his secretary and I would sometimes roll our eyes like teenagers hearing the same parental wisdom for the umpteenth time. And, as I came to realize, wisdom it was. It may be challenging for you to find the best outcome, but what are the odds that a stranger in black robes will do better?