Negotiating an Agreement v. Litigation

Posted on May 8, 2024 by Katie Carter

Not every case can be negotiated – this we all know.  But, in an ideal world, you and your soon-to-be ex would negotiate, because this is going to give you the most control over how your case will be resolved.

No matter what issues are involved, you have essentially two options: agree, or go to court, fight it out, and let the judge decide.

I’ll forewarn you: cases decided by the judge are not ideal, for a lot of reasons.

  1. They’re expensive.

Going to trial is expensive.  Most courts have all sorts of roadblocks in place before you can schedule a trial, like mediation and judicial settlement conferences, all designed to help promote settlement.

It takes time and preparation for you (and your attorney, if you have one) to go through all of these steps.  The more time involved in a case, the more the other side can drive up costs with unnecessary motions, discovery requests, or other foolhardy tactics.  (They may be well aided and abetted by their lawyer, too, especially if they hired one of the so-called ‘pitbull’ attorneys.  This is not a compliment.)

Most people don’t have the money to continue to litigate.  A contested divorce that goes all the way through to trial can result in attorney’s fees of $25,000 or more (and that’s per party!), depending on the issues.  That’s a relatively conservative estimate.  In general, child custody and spousal support are the big wild card issues that can result in cases being even more ludicrously expensive.

  1. They’re time-consuming.

It takes time.  And time is the enemy, in a lot of ways, because it just leaves room – uncertainty, mistrust, and suspicion breeding silently all the while – for other issues to come up.  The more issues you have, the less likely you are to reach a peaceful or amicable resolution and, if you have kids in common, the less likely you are to be able to cooperatively or effectively coparent together in the future.

The more time it takes, the more issues come up.  The more issues come up, the more unlikely you are to reach a settlement.  The more unlikely a settlement, the more likely you are to receive a bad result.  The worse the result, the more difficult your post-divorce life, and the more likely you are to have repeated problems that take time, cost money, and bring you back to court.

It’s a recipe for disaster.  Quick and efficient resolution is your friend.

  1. They yield cookie cutter results.

Judges don’t have time to craft unique arrangements in divorce or custody cases.  It takes time and creativity, not to mention the fact that coming up with unique provisions means that you need to take some time (something that you don’t have in the middle of a hearing) to think through the potential ramifications of a provision.

I can’t tell you how many times I’ve drafted a provision that I think sounds pretty good, only to reflect a bit more and see some way that the other side can manipulate or exploit it.  So, back to the drawing board I go.  This is much harder – or even impossible – to do on the fly, especially when one side is already looking at the provision with an eye to how they can manipulate it in their favor.

Judges also don’t want to open themselves up to allegations of favoritism or abuse of power, they don’t want to be overturned on appeal, and, in many cases, they just don’t like family law cases, anyway.  It’s he said/she said, and it’s difficult for a judge – the person in the room who knows the parties and the case the LEAST – to tell who the problem is (or whether both people are, in all likelihood, equally impossible).

It’s also further compounded by psychology, right?  An abuser looks good in court.  He’s calm, cool, collected.  He’s just insane, but he knows better than to present that way.  The ABUSED person, though?  She might look like a nutcase, because she’s been gaslit, mistreated, and led to believe that she’s actually the insane one!  It can be hard, on the surface, especially as a stranger, to get any kind of accurate picture.

I get it: negotiation isn’t easy.  It isn’t even always possible!  But it’s definitely ideal, especially when you consider the alternative.  It’s tempting to think that you’re going to get your day in court or that the judge is going to listen to you, but my experience is that it’s generally disappointing, frustrating, worse: it doesn’t provide actual, workable solutions that make coparenting easier.

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