To Litigate or Not to Litigate Your Divorce – PART 1

PODCAST SUMMARY – Nobody wants to litigate their divorce, but if you find yourself in that position, attorney Ruth Kim guides you through the do’s and don’ts to keep it as productive and cost efficient as possible.


This is the first part of Jessica and T.H.’s discussion on marital litigation with Ruth Kim, a New Jersey attorney practicing family law. Ruth is a tough lawyer who never shies away from the intensity of a divorce trial. Yet, with Ruth’s strength, comes the determination to get her client’s to avoid having to settle in court. She doesn’t step into fighting mode, unless her client’s insist on it. For Ruth, litigation is always the last option.


  • It may come as a surprise, but the court system is set up with the intention of avoiding a trial.
  • It is a mentally emotionally draining process, but when you have children involved, and you have finances involved, it can become an amalgamation of the worst possible things to happen.
  • You need a poker face. You want to keep your face as neutral as possible and your demeanor as poised as possible.



Welcome to another episode of the exEXPERTS DIVORCE etc… Podcast where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it! We’re Jessica and T.H.

T.H.: Welcome to today’s podcast. I am so thrilled to have Ruth Kim here. She’s an attorney specializing in family law in New Jersey. Welcome to our podcast.

Ruth: I’m so excited to join these two wonderful ladies for this podcast.

T.H.: Thank you.

Jessica: Thanks Ruth. T.H. and I always have a lot of conversation about all the different ways that people can get divorced. The funny thing is that I feel we’re always concentrating on all of the options where you don’t have to duke it out in court, and then realize we actually haven’t spoken to anybody about what you do when you’re actually duking it out in court.

T.H.: Right. And my divorce was always heading towards litigation, despite multiple mediations and lawyer panels and everything. We were prepared to be in court, and we settled at the doors. I never got to that point, but tell us about litigating. It’s so daunting and scary, and everyone’s doing everything they can to avoid it.

Ruth: I can tell you this. T.H., your experience in the divorce world is the minority. I mean, 99.9% of cases settle. You unfortunately, you’re in this club of that 0.1%, which is you did all the bells and whistles, and the court systems are set up so that you do settle beforehand. You touched on it right now and you had indicated the panels, the mediation sessions.

I mean, the court system really is geared towards trying to get husband and wife, spouses, partners, to a point where they want to resolve their case to avoid that trial.

I practice in New Jersey, so most of what I’m talking about is New Jersey specific. If you are in a jurisdiction that’s outside of New Jersey, or a state outside of New Jersey, obviously, I recommend you doing your research and talking with counsel in that state or jurisdiction. Disclaimer, I just have to do that. I’m an attorney, I can’t help myself.

Jessica: Of course.

Ruth: But all that being said, when you start a case, it is truly geared towards–you do your initial case management conference, you have discovery that’s exchanged, and once you get to that point, you have early settlement panel, which is a panel of two or three attorneys that volunteer their time, hopefully to try to resolve your case. Once you get past that hurdle and you don’t settle your case, then you’re at economic mediation, where it’s a mediator who is for two hours volunteering their time, and then thereafter, hopefully gets you to a point where you’re having several multiple mediation sessions. I’m assuming T.H., that’s probably what you did in your situation, considering how lengthy your divorce process was?

T.H.: Yeah.

Ruth: At every point in turn, hopefully both of you guys are giving in just a little to hopefully get yourselves done. Unfortunately, again, you’re in that 0. 1% where you did have to essentially prepare yourself for trial and prepare your case as if you’re going to trial. A lot of times, it could be, and I take this with a grain of salt, a simple issue of whether or not a debt owed is something that is your responsibility, or if it’s a joint marital responsibility. Depending on that debt, you go to trial, because it could be a large number, or for instance, and I’ve had this in a situation where a house is valued at one number and another expert says it’s valued at another. Well, guess what? You’re battling experts, and if the number is large enough, you will go to trial on that issue.

A lot of times you don’t want to settle 85% of your issues to have that one issue hanging over yourself. You want a global resolution.

A lot of times, it really is–obviously it is very fact specific as to why you go to trial. There are a lot of numbers of reasons why you go and I just gave you a couple that come off the top of my head.

Jessica: I feel like to me when I think about litigation, it’s almost like the traditional, the old fashioned divorce. That’s what you saw in the movies, that’s what it was with Kramer vs. Kramer, that’s what you saw on  The War of the Roses. But then when you talk to people, more and more people will say it’s not even just about settling. I don’t even consider my situation having settled. We had, unbeknownst to us 12 years ago, a collaborative divorce. We never went to mediation. We didn’t do–there was another kind of divorce that we didn’t do, and we literally came up with the terms ourselves, basically wrote out the agreement ourselves, and had the lawyers sign off on it. Nowadays, there are attorneys getting certified in collaborative divorce, which is evidently what we did. More and more people today are saying that they haven’t stepped foot in court. Other than the examples that you said, this is really a different question, how does someone know that that’s kind of the road that they’re going to be going on? I feel like there are a lot of people who from the very beginning are like, “He’s an asshole. We’re going to court” like they were never going to be able to work it out. People the second they know they’re getting divorced, that’s their expectation.

Ruth: Yeah, I can say that, again, you know who you married, right? A lot of times, I have the situation where if you file for divorce, I’m going to make your life a living hell, pardon my language, until I get what I want or I financially destroy you. That is obviously the extreme. You have to prepare yourself for that, because again, you know who you married, you know who you’re divorcing, and you have to set yourself up for that. That is a mentally emotionally draining process, not only that, and I take that, because those are very important to me and my clients in making sure, but when you have children involved, and you have finances involved, it is an amalgamation of the worst possible things to happen.

You have to brace yourself for it. Unfortunately, a lot of times that’s why trials happen, when you have unreasonable positions, unreasonable parties, and sometimes unreasonable advocates that are causing the case to proceed in the fashion that it is. I always say that when you’re in a divorce, there are four people. The four people are yourself, your spouse/partner/ex, and the two attorneys involved.

So if you don’t have a good symbiotic relationship, and you don’t have to be best friends with your soon to be ex-spouse, you don’t to be best friends with the attorney on the other side, but there’s a level of collegiality, and there’s a level of respect that you should have, especially if there are children involved. A lot of times cases go to trial because children and custody become an issue. You say why are we in this position? So yes, on the one hand, it could be unreasonableness of the parties and reasonableness of positions, but also, custody becomes a significant factor in whether or not something is going to settle or not. If someone’s obstinately saying that mom can’t handle the children and dad has handled it their entire lives, and why should mom get 50/50? That is a point of contention that experts will get involved. And custody experts, I mean, let’s be clear, that could take 6, 12 months to do. Then you get rebuttal reports because a year has passed. I’m sure I’m dragging a lot of things up for you T.H., because you did have this different experience from Jessica. To me, that’s why this is such a great forum, because you have two ends of the spectrum with regards to how to deal with this divorce enigma, for lack of a better way of saying it.

T.H.: Right. I also want to manage people’s expectations going to court. You walk in the room, you sit down with your lawyer, your spouse sits down with their lawyer, and you have a judge in front of you. The judge only addresses the lawyers, but once in a while, he’s addressed me directly, and I was like, holy shit, what do I say? [Right]

Tell us about how you prepare your client for when they are in a courtroom, because it’s daunting enough.

And by the way, I had all of the [people behind you? The galley was filled with fathers who were part of the chain gang that day, who had not paid their alimony or child support, wind up behind me. Now we’re like in land pandemic, Zoom divorce, it’s not like that, but–

Ruth: Yeah, I was going to say it’s totally different.

T.H.: You’re sweating bullets and you’re trying to look very together. Tell us how you prepare your client if you are going into the courtroom?

Ruth: Obviously you’re going to the courtroom for a number of occasions, and again, in the pandemic right now, that is not happening. I don’t remember the last time I wore heels and the last time I stepped foot in a courthouse.

T.H.: Yay for that.

Ruth: I’ve got to tell you though, I miss it. I miss seeing the judges face to face. I miss seeing even my adversaries really, to communicate with them and just be out there, but all that being said, I guess it depends on what stage of your litigation you’re going to be in court.

There are things called motions, which are applications you file before court, and whether it’s interim relief for relief that you’re seeking prior to the commencement of trial. If you’re doing that situation, a lot of times you will have an opportunity to speak because the judge might have a pointed question for you with regard to this. I always prepare my client to only speak when you’re spoken to. Please don’t interrupt the judge. It is astounding how much a judge sees when they’re behind that bench. They see everything. Body language, you doing your [exasperated sigh], and feverishly writing, I kid you not, or tapping me on the shoulder. I mean, I’ve had to kick my clients under the table to tell them.

Jessica: Which the judge probably also sees.

Ruth: I know. You’re absolutely right. [Totally] But to be quite honest, it’s one of those moments where I’m like, are they for real? But I have to also take a step back. They don’t know how to behave, and this is their life. This is their moment. He’s not paying the electric bill, or he’s alienating our kids. I need relief, and I need relief now, so they get in panic mode.

Before we even do anything, whether it’s a motion hearing or case management conference, I always, always tell my clients, please be mindful that the judge is noticing everything.

And I have to tell you, I’ve been in chambers with judges afterwards, or during settlement conferences, and they’ll tell me, “Your client is very agitated right now. Calm her down. I can see it.” It’s not even an admonishment. It truly is because he also understands the impact of what’s happening too. But to circle back to what we were talking about, it really depends on what the situation is. But you certainly have to talk to your clients and advise them that judges notice everything. They really do.

Jessica: What would you say–?

T.H.: Hang on. The other thing, the tip that I was given was, whenever you’re asked a question, you take two deep breaths.

Ruth: Exactly.

T.H.: You do not speak. You also make sure you understand the question that’s asked, and you can ask the judge to repeat the question, so that you’re not volunteering information or just saying stuff like, “Well, I just really want to know this,” because you can be hurting yourself. I definitely was freaking out, but I remembered that. And actually, I use that in a lot of lot of real life situations.

Jessica: Those are good tips.

Ruth: That’s a real good tip in general.

T.H.: Especially with my kids like, “Can I blah blah blah?” I’m like [deep breaths] “So you’re asking me for $200 instead of $100? I just want to make sure I’m understanding the question.” It’s like one of those things, but that really was a good tip.

You only answer what’s asked, you make sure you understand the question, and you give yourself a few seconds to just take it in, otherwise it could be a mess.

Ruth: 100%. And just to add to that, courts in New Jersey at least, and I’m assuming everywhere, it’s recorded. Everything is recorded. Even if you’re muttering under your breath, or you’re saying something to your attorney, keep that in mind that it picks up, so the judge could–

Jessica: Has that always been the case?

Ruth: I think in the last, I clerked, I hate to say this, but I clerked 14 years ago, and I think they had just started, but now you see signs in the courthouses saying microphones always on, so be careful. I’m just adding to what T.H. said, just keep your face like as blank as possible, make sure you understand the question, breathe, and definitely don’t mutter anything under your breath, because it certainly can get picked up. Just be careful of that too.

Jessica: I just want to follow along this area of giving the tips:  breathing, taking two breaths, clarifying the question, making sure you’re controlling your facial language, your body language, all of that.

What are other things that you feel are amongst the most important things to prepare people in terms of going to court?

I am a very emotionally excitable person, whether it’s good news or bad news. I can 0 to 60 in 0.2 seconds, and I feel like that would not be great in a courtroom. That goes to the taking two breaths, but just preparing people like never do this, always do this.

Ruth: I think that goes towards keeping your face as even keeled and your demeanor as even keeled as possible. If you win something in a court, or if you have an emergent application and you succeed in your application, I wouldn’t be doing high fives with your attorney. I would keep it as composed as much as possible, and just think about it as poker face. Outside, you can certainly do what you want, but again, voices carry, I wouldn’t be doing high fives outside of the chambers or outside the courtroom either. It’s like when your child wins a game, and the opponent’s parents are next to you, you’re not gloating in front of them. I mean, it’s poor form. Well, maybe you are but–

T.H.: We know what you’re thinking.

Jessica: Maybe not your finest moment.

Ruth: Oh, okay. Well–

T.H.: We’re all human.

Ruth: It is. And I have to say that you have to take that into consideration too, that everyone is human, and the emotions will come up. I’ve had a lot of clients cry. I mean, because when they’re upset they cry, when they’re excited they cry, when they’re happy they cry. I have to tell them, please try to keep your crying to a minimum, but at some point, it’s their life. It is their life. Whenever I look at a final settlement agreement when a case is finally said and done, and my name is on it, I have a sense of I’m a part of these people’s lives for the rest of their lives. Their legal document has my name on it. I say to myself, okay, I got them through the hardest part of their lives. Fingers crossed, that will be the hardest thing they have to go through, and let’s have them go up now. That truly to me is, as much as an emotional aspect or process this is, I have to take into consideration their feelings, but also making sure that they’re presentable before a judge.

Jessica: I’m curious, we only have a couple more minutes, but like I was saying in the beginning, litigation is kind of the traditional type of divorce that is all dramatized in our lives and stuff like that.

When you have clients that come in, and that’s what their expectation is, that they’re going to have to go to court, that their ex is a dick, or whatever, are you actively trying to pull them away from litigation? Are you trying to almost scare them enough that they will turn away and look for another option? Or do you feel if someone comes in and says they want fight it out in court and you’re like, “Okay, great. Let’s go for it.”

Ruth: The way I always deal with any case that comes in and I say is, “Do you want to settle your case? Do you want to pay for my children’s’ college education?” It sort of brings it home for these potential clients because they say to themselves, huh. It personalizes it, right? I don’t need you to pad my pockets, because in all reality, this is a referral based system and if I do you a good job, you’re going to tell your friends I did a great job for you. For me, I am not, and I tell this to all my clients, because I do get people who say that, “Oh, I’ve heard that you’re tough.” I’ll be tough, and that honestly is truly how I am–

Jessica: But damn straight.

Ruth: But if it means that I can settle your case, and it means that neither one of you are going to be happy, but you’re going to be happy enough with the result, why wouldn’t I push that for you? Because again, any penny that you pay to me is one less penny you pay towards your children’s college education. You should always be focused on trying to settle. Like I said earlier, there are just some that aren’t going to settle. They just aren’t. The 0.1%, you’re in an inevitable situation. You’re an unenviable party. You may be like T.H., that settles the day of trial, but you’ve already spent 30, 40, $50,000 to prepare to get to that day. But maybe your spouse or ex-spouse needed that cathartic experience to get to the settlement table and say, “I’m ready to be done.” I mean, it really truly is, I can say this unequivocally, I don’t have ‘let’s fight, let’s fight, let’s fight’, unless a client insists upon it, and then I tell them every step of the way, let’s try to see if we can get to a reasonable settlement. But again, there are those cases that won’t settle.

T.H.: There’s actually a lot more that I want to get into, so maybe we’ll do another podcast about it [absolutely], but I want to talk about the importance of the lawyer’s relationship. There’s that movie, Divorce Corp, which clearly shows relationships of judges and lawyers that precedes any of your own personal interest. We had spoken about before, certain lawyers that are just looking to rack up their bills. I was probably like prime meat for mine. She did, and we did, and it was a gross amount of money, but we got sucked into the system. Maybe we’ll do another one that’s really talking about the system of litigation, because there are reasons to avoid it [100%]. We touched on one or two of them, but you guys can’t even imagine the paperwork and digging up your past.

Ruth: Oh, I can.

T.H.: And the really big thing in my mind is you’re letting a judge [who doesn’t know you] decide your future and your kid’s future.

That’s why every other step is taken into play because at least you still have some say in the ultimate division of your divorce. Once you go to a judge, I mean, I had four judges. One of them did not like women. He didn’t. The statements he said to me made me feel like, “Holy shit, I’m so screwed” [what did I get myself into?] There’s a lot of dynamics and a lot more that we do need to explore that I think that we should [absolutely], but the biggest thing is you lose control. You use a lot of money on a bunch of paperwork and a lot of lawyer’s time, and the decision is not yours to be made.

Ruth: I always say to potential clients who are about to start trial or thinking of it, “Do you want a person in a black robe deciding your fate, your children’s fate, and the rest of your lives?”

Jessica: It’s pretty crazy.

Ruth: It is. It’s absolutely bonkers that people would much prefer a third party to do that, who may or may not rule in your favor if they got up on the wrong side of the bed. I mean maybe their cat got run over or something can set them off to a point where they just don’t like you today. Judges are human. It’s normal. It’s a normal thing, I’m not demeaning any of the judges, because they’re human and they are deciding a lot of cases on any given day, to be quite honest. At any given day, they’re deciding your life. Are you sure you want that to be before a judge? If you go to mediation, if you go elsewhere, if you go to any conciliatory methods, you’re in control to some extent.

Jessica: Right.

T.H.: Right. And you only have control, like if you were my lawyer Ruth, you can control me, but we can’t control the other side. [That’s right] And that’s how it dragged where it was because I kept getting dragged in. It really takes two good lawyers and two clients who will listen.

Jessica: That’s exactly what Ruth said before, four people in every divorce.

Ruth: It takes the four people.

T.H.: We’re going to have to dig in deeper on that, like what do you do if you’re on the “Let’s settle” and they’re on the “No way. We’re going to court.” You’ve got to go along for the ride.

Ruth: That’s a podcast in and of itself.

Jessica: Yeah, we’re going to have to do that one for sure. Well, thank you so much for your time today. We really appreciate it.

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