For most who are going through a divorce, whether as the petitioner or as the respondent, they worry about the big, immediate questions: “Who gets the kids? Who gets the house? How much will I pay (or receive) in support?
While those questions are critical, they almost always obscure the more subtle, nuanced, and financial realities that have a profound impact on post-divorce life. The litigants who treat divorce solely as a moral battleground often walk away with seeming “victories” that reveal themselves as defeats after the dust settles.
Conversely, those who make the effort to approach process in a more businesslike manner often fare far better. I’m not suggesting you can simply turn their emotions off; I’m urging you to keep your emotions under healthy control, so that your energy goes into understanding, analyzing, and solving problems, rather than wallowing in fear and self-pity.
Here are the six aspects of divorce litigation that are most frequently underestimated, and a discussion of how overlooking them can hurt your case.
The “Burn Rate” of Litigation (or, The $500 Toaster)
The single most common shock for litigants is the speed at which legal fees accumulate. It is easy to assume that your attorney’s retainer will last until the trial. In a contentious divorce, however, that retainer can evaporate in the first month of filing motions. Really.
The most dangerous trap here is fighting on “principle.” Now, some principles matter (greatly), but your resources are limited and you must learn how to pick your battles wisely. It is not uncommon for couples to spend thousands of dollars in billable hours fighting over things that are worth a fraction of the legal fees paid to fight over them (“spending a dollar to get/save a dime”) just to show who’s “right”. The time and effort that consumes carries a cost, and those costs add up quickly.
Save your legal budget for resolving the issues that impact your long-term financial security and what you value most.
The Tax Reality: Not All Dollars Are Equal
If you trade assets based solely on their face value, you are likely making a mathematical error.
Imagine your spouse keeps a savings account with $100,000, and you take the 401(k) with $100,000. On paper, this looks like a fair 50/50 split. In reality, you have lost money.
Why? Because the savings account is “post-tax” money. It is liquid cash. The 401(k) is “pre-tax” money. When you eventually withdraw that money, the government will take a significant cut (often 20-30% depending on your income tax bracket).
If you keep the marital home, you may eventually be solely responsible for the capital gains tax on the appreciation that occurred during the entire marriage. And you need to factor in the ongoing obligations of maintenance and mortgage and insurance, etc. that home ownership extracts from you.
Again, consider the costs. Always look at the after-tax value of an asset. A dollar in a brokerage account is worth more than a dollar in a retirement account.
The Invasive Nature of the Discovery Process in Litigation
Discovery is the formal process in divorce litigation where both sides must exchange information, documents, and evidence so no one is ambushed at trial. It forces transparency: each party must reveal financial records, communications, and other relevant material so the court can base decisions on facts rather than accusations. Most discovery happens through written tools—interrogatories, requests for production, requests for admission, and subpoenas to third parties such as banks, employers, or medical providers. Depositions add another layer, allowing attorneys to question parties and witnesses under oath and lock in testimony before trial.
Divorce cases also require mandatory financial disclosures under Rule 26.1 and initial disclosures under Rule 26 of the Utah Rules of Civil Procedure, which obligate each party to provide basic evidence, witness information, and financial documents early in the case. Failure to disclose can lead to evidence being barred at trial. The scope of discovery is intentionally broad and reaches into areas many people assume are private: spending, parenting, communications, digital activity, relationships, employment, and more.
Ignoring or resisting discovery is a losing strategy. Courts enforce strict deadlines and can impose sanctions ranging from fees to exclusion of evidence or even adverse rulings. As intrusive as it feels, discovery is designed to clarify the real issues, expose the strengths and weaknesses of each side’s case, and often push the matter toward settlement. Privacy protections exist, but they are limited and relevant information almost always must be produced.
For most litigants, discovery is the most stressful part of the case because it feels like an investigation into their personal lives, but it is also what gives the court the reliable information it needs to reach a fair outcome. Forewarned is forearmed.
The Stranger in a Robe
Perhaps the biggest psychological hurdle is the erroneous belief that a judge will listen to your entire life story, understand your pain, and validate your experience with a morally “fair” ruling.
The harsh truth is that family court judges are overworked bureaucrats with massive caseloads. They do not have the time to understand the nuanced emotional history of your marriage. They apply the law based on the limited facts presented to them in a short window of time.
Relying on a judicial ruling means handing over control of your children and your finances to a stranger who may have a very different definition of “fair” than you do.
A settlement you negotiate yourself (even one where you compromise) is almost always less expensive and less surprising than a roll of the dice in court. What does that mean? When lawyers say a negotiated settlement is almost always cheaper and less surprising than going to court, they’re pointing out a simple truth: litigation is unpredictable and expensive, and you lose control the moment you hand your fate to a judge. In a settlement, you have more control over the terms, you know what you’re agreeing to, and you avoid the cost of further discovery, expert fees, motions, conferences, and trial preparation that may or may not benefit you. By going to trial, you pay for all of that, and then you live with whatever ruling the judge issues, even if it’s worse than anything you would have accepted in negotiation. Settlement isn’t about “giving up”; it’s about choosing certainty, affordability, and a result you can live with instead of gambling on a stranger’s decision after a costly fight.
Future-Proofing the Parenting Plan
When negotiating custody, parents often hyper-focus on the schedule right now. They fight for specific days based on their current routine.
But your schedule can (and likely will) change. Children grow up . . . and their schedules change. A schedule that works for a 4-year-old (who needs frequent transitions and shorter stays) is often disastrous for a 16-year-old (who wants to be near their friends and school activities, go to work, go on dates, etc.). If your parenting plan is too rigid, you will find yourself back in court paying more legal fees trying (trying) to modify it a few years later.
Additionally, beware of the “right of first refusal” (a clause you can include in a decree of divorce that requires a parent to offer the other parent the opportunity to care for the child before hiring a babysitter or nanny when a parent won’t be available to provide personal care and attention). While it sounds “fair,” in high-conflict divorces, it often becomes a tool for control and surveillance.
The Reality Check: Build flexibility into the agreement. Include language that anticipates changes as the children age.
When negotiating custody, parents often fixate on the schedule that works right now—specific days, exchanges, and routines tied to their current jobs, the child’s age, or convenience.
But jobs change, school schedules evolve, kids become teenagers with lives of their own, and a plan built for a 4-year-old can become unworkable or miserable for a 16-year-old.
Hyper-rigid custody and parent-time plans almost guarantee future conflict, a return trip to court, and the attendant attorney’s fees and other litigation costs when life inevitably shifts.
Parents also overlook how many moving parts a parenting plan actually covers: holidays, summers, transportation, communication rules, travel, technology, medical decision-making, extracurriculars, and what happens when either parent’s availability changes. Even seemingly “fair” provisions—like the right of first refusal—can morph into tools for control, nitpicking, or constant accusations in high-conflict situations.
Build flexibility into the agreement, anticipate age-based transitions, and draft a plan that can adapt to the child’s developmental needs and the parents’ changing lives, not just the moment you’re in right now.
It is also wise to include a clause requiring both parents to deal with each other in the utmost good faith; without it, the slightest ambiguity in the plan becomes ammunition, while a good-faith clause gives courts a standard to enforce and a basis to penalize and discourage manipulative or bad-faith behavior.
The “House Poor” Trap
Finally, there is the emotional attachment to the marital home. Many litigants, especially those with primary custody, fight tooth and nail to keep the house to provide “stability” for the children.
However, they often overlook the post-divorce budget. If you “win” the house but your liquid income (salary, plus or minus alimony) isn’t enough to cover the mortgage, taxes, insurance, and the proverbial “leaky roof” and other maintenance, you become “house poor.” You may be forced to sell the home anyway in a year or two, but only after depleting your savings to stay afloat.
Liquidity is freedom. Sometimes, the smartest move is to sell the house, split the equity, and start fresh with a manageable lease or a smaller mortgage.
The Practical Mindset for Protecting Your Future: Why a Disciplined Approach Matters
Divorce is not just a legal process—it is a series of decisions that will shape your financial stability, your relationship with your children, and your peace of mind for years to come. Those who approach it as a war to be won usually learn too late that they were fighting the wrong battles. The advantage goes to the litigant who thinks strategically, budgets wisely, stays emotionally disciplined, and treats the process as a set of practical problems to solve rather than a referendum on the past. Keep your focus on what truly matters. Anchor yourself in reality, not emotion. If you understand the true costs, anticipate the long-term consequences, and negotiate from a place of informed realism rather than impulse, you give yourself the best chance of emerging from divorce with your finances intact, your parenting future protected, and your dignity unscathed.
Utah Family Law, LC | divorceutah.com | 801-466-9277