The simple answer is that a divorce must go to trial if the parties are unable to settle it in mediation or otherwise.
Although the vast majority of cases are settled outside of court, some end up being decided by a judge and/or jury. While a judge must decide how property is going to be divided and what possession schedule the parties will have with the children, a jury can decide such things as:
- The characterization of property (whether separate or community),
- Who should have the right to designate the primary residence of the children,
- Whether a primary parent will be subject to or can lift a geographic restriction
- In the case of a claimed common law marriage, whether a marriage even exists
Sometimes, one or both parties have unrealistic expectations about what they should get in a property division. If the other party believes that a judge will treat him or her better than the other party is willing to do in a settlement, they may prefer to spend the money on a trial instead, and let a judge decide how to divide the property.
In cases involving children, the question of who should be the primary caretaker of the children and how much possession or access each party should have may not be something on which either party is willing to compromise – in that event, a judge and/or jury will have to decide.
Whether a party will be allowed to move out of a restricted geographic area sometimes has to be decided by a judge or jury, as there is often no middle ground to be reached when one party desires to move for a better job or because a new spouse is being transferred outside of the area. In short, any time finding a middle ground is difficult or even impossible, a divorce or modification case (child-related issues) can end up in trial.