The good news is that litigated family law cases constitute the vast minority of cases. No matter what the stakes, most cases ultimately settle for a number of reasons but chief among them are these: (1) no one can afford long-term litigation, (2) litigating doesn’t yield better results, and (3) going to court takes longer.
No one goes to court because they want to go to court – or, almost no one does, because I can’t assume that there isn’t one incredibly sadistic weirdo out there who thrives on it – but instead because they can’t work out a solution any other way. It’s a means to an end, not a means in itself.
Even though we spend a lot of time talking about the litigated process, the minority of cases will go all the way through it. Oh, sure, many will have a hearing or two before they work things out, but ultimately working an entire family law case through from start to finish is a rarity. Though family lawyers go to court a lot, it’s often on smaller motions and pendente lite hearings, rather than on full fledged divorce trials.
Still, some issues beg to be resolved by the court because the parties just can’t, for whatever reason, resolve them themselves.
That’s not a dig. Hey, this stuff is hard. And, sometimes, it feels like there just isn’t a middle of the road solution, or one party is so entrenched in their position that any movement from it feels impossible. Maybe they’re difficult, but maybe, too, it’s just really, really important to them. Maybe there are compromises you just can’t make.
Usually, I feel like it isn’t up to me whether a case goes to court. I negotiate with the other side, I make the offers my client authorizes me to make, and then we discuss. From there, we come up with a strategy, including whether we compromise, continue to negotiate, or just set the matter for a hearing or trial. I always make sure my clients know the advantages or disadvantages of any particular course of action – at least, as well as I am able to anticipate them – so that they can make an informed choice.
But, at the end of the day, each case belongs to each client and the decisions (as well as the consequences) are theirs alone to carry. I want them to make an informed choice that they can live with, even if theirs is not a choice I would make. Reasonable minds may differ and all that.
I wouldn’t say that I have a spidey sense about which cases will go to trial and which cases will settle. Mostly, I keep an open mind. After all, most DO settle, so if I had to err, I’d err on the side of assuming compromise will be possible. Usually it is, if only because the cost of litigation necessitates compromise.
And, while that might not sound good, I think it often is. Negotiated results are usually better – and contain a whole heck of a lot more detail – than court-ordered results. It might not feel like you’ve won on every point (and, sometimes, family law attorneys will say that’s how you know it’s a “fair” or “good” result, that everyone feels like they’ve lost a little), but you know what your agreement is and you can live with it. There’s no uncertainty of leaving it up to someone who knows very little about you and your case and, if applicable, your children.
I find that women, too, are not necessarily good judges of their own cases. I’ve heard plenty tell me that their case will settle easily, and still others who insist that theirs will be the most nasty, contentious, drawn out battle I can possibly imagine. Either way, I think these people are speaking more to their hopes and their fears than the actual reality of their cases.
It’s fair. After all, there’s a lot at stake. It’s only natural to hope for the outcome you need and to fear the outcome that you dread, especially in such a volatile and unpredictable process.
I guess I’d say that the only thing I know to be true is that the biggest wild card issues are always going to be child custody and spousal support. Without those two, the issues come down to just money – determining marital shares, classifying property, and, ultimately, dividing it. And while you may be really angry about dividing, say, your retirement accounts or what happens with the marital home in your divorce, because these are assets worth a finite amount of money, there’s a particular kind of mathematics that comes into play here. I can spend $X to fight over this, but not any more. You know? At some point, it doesn’t make sense to keep going. The numbers don’t justify it.
Child custody and spousal support sort of defy that logic, so you can sometimes wind up with heavily litigated cases. And maybe more than just those issues are ultimately litigated, but those issues are the ones that are the driving force behind the conflict.
It can be difficult to predict which cases will go to court, but, fortunately, most will ultimately settle. What do you think? Will yours settle?
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